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HomeMy WebLinkAboutAgenda Report - May 3, 2017 I-03TM CITY OF LODI COUNCIL COMMUNICATION AGENDA ITEM �3 AGENDA TITLE: Introduce Ordinance Amending Lodi Municipal Code Title 9 — Public Peace, Morals and Welfare — by Amending Section 9.12.010 "Discharge of Weapons and Fireworks — Fires" - and by Repealing and Reenacting Chapter 9.13 "Sale of Fireworks" in its Entirety MEETING DATE: May 3, 2017 PREPARED BY: City Attorney RECOMMENDED ACTION: Introduce ordinance amending Lodi Municipal Code Title 9 by amending Section 9.12.010 "Discharge of Weapons and Fireworks — Fires" and by Repealing and Reenacting Chapter 9.13 in its entirety to comply with State Fireworks Laws, restrict the date and time allowed for the discharge Safe and Sane Fireworks, provide for the recovery of transaction costs the seizure of illegal fireworks, and establish a third -party administrative citation procedure. BACKGROUND INFORMATION: The possession, sale, and seizure of fireworks are regulated by the California fireworks laws as set forth in California Health and Safety Code Section 12500, et seq. California law authorizes local municipalities to allow the sale and discharge of Safe and Sane Fireworks via an ordinance. The existing Lodi Municipal Code provisions on fireworks, Section 9.12.010 and Chapter 9.13, were enacted in 2013. The City Council held a shirtsleeve meeting on January 24, 2017 to discuss the issue of fireworks in response to community concerns about the discharge of illegal fireworks within the City. Direction was provided to continue the sale and use of Safe and Sane Fireworks, but to amend the existing ordinance to restrict the duration of time allowed for the discharge of Safe and Sane Fireworks. The proposed changes reflect updates that conform with state law and provide a third -party administrative citation procedure. The deletion of the word "possesses" from Section 9.12.010(B)(1) conforms with California Health and Safety Code Section 12677, which says that, "It is unlawful for any person to possess dangerous fireworks without holding a valid permit." California Health and Safety Code Section 12700 also provides a schedule of penalties for the possession of dangerous fireworks. This indicates that the possession of dangerous fireworks has been preempted by state law and that people who illegally possess dangerous fireworks should be cited for violating the California Health and Safety Code. Lodi Municipal Code Section 9.13.020 was amended to include a sunset provision on the existing period in which people are allowed to discharge Safe and Sane Fireworks within the City. Beginning January 1, 2018, the discharge of Safe and Sane Fireworks will be allowed only on July 4, from 9:00 a.m. to 11:00 p.m. A sunset provision of the existing law was deemed necessary to accommodate non-profit organizations that have already obtained a permit to sell and invested their time and resources in reliance on the existing ordinance. APPROVED: ephen c`i, uer, City Manager Lodi Municipal Code Sections 9.13.080 and 9.13.140 were amended to conform with California Health and Safety Code Section 12689(b), which says that, "It is unlawful for any person who is a retailer to sell or transfer any safe and sane fireworks to a person who is under 16 years of age." The existing state law therefore pre-empts a local age restriction on the sale and possession of Safe and Sane Fireworks. The amendment to Lodi Municipal Code Section 9.13.120 reflects California state law, which provides that a municipality may issue an administrative citation to any Person who possesses a gross weight, including packaging, of Tess than 25 pounds of unaltered Dangerous Fireworks. The amendment to Lodi Municipal Code Section 9.13.150 reflects California state law, which provides that enforcement officers may seize illegal fireworks and recover a fee for the cost of transporting, storing, and handling such fireworks. This Section will work in coordination with California Health and Safety Code Section 12726(c), which says, "If dangerous fireworks are seized pursuant to a local ordinance that provides for administrative fines or penalties and these fines or penalties are collected, the local government entity collecting the fines or penalties shall forward 65 percent of the collected moneys to the Controller for deposit in the State Fire Marshal Fireworks Enforcement and Disposal Fund..." Lodi Municipal Code Section 9.13.175 was added to provide a third -party administrative citation procedure that will allow an enforcement officer to issue an administrative citation based on the affidavit of a private citizen who observes a violation of the Lodi Municipal Code fireworks regulations. The private party witness will be required to sign an affidavit under oath and testify at an administrative hearing if necessary. This procedure will provide private citizens with another option of enforcing the fireworks laws by pursing an administrative citation against a violator, in addition to pursuing a citizen's arrest against a person for possession of dangerous illegal fireworks. Staff reviewed the existing ordinance and found that the administrative fines are currently set at the maximum allowed by state law and the State Fire Marshall's model ordinance. Staff recommends adopting proposed amendments and revisions. FISCAL IMPACT: Not Applicable. FUNDING AVAILABLE: Not applicable. 1 •+ hn P. Fukasawa Deputy City Attorney ORDINANCE NO. AN ORDINANCE OF THE LODI CITY COUNCIL AMENDING LODI MUNICIPAL CODE TITLE 9 – PUBLIC PEACE, MORALS AND WELFARE, SECTION 9.12.010 AND REPEALING AND RE- ENACTING CHAPTER 9.13 IN ITS ENTIRETY BE IT ORDAINED BY THE LODI CITY COUNCIL AS FOLLOWS: Section 1. Lodi Municipal Code Title 9 - Public Peace, Morals and Welfare, Section 9.12.010 - Discharge of Weapons and Fireworks -Fires - is hereby amended and shall read as follows: 9.12.010 Discharge of Weapons and Fireworks—Fires. A. Any person who does any of the following without first obtaining a special permit therefore, in writing, from the Chief of Police, which permit shall designate the time and place of such firing or discharging, is guilty of a misdemeanor: 1. Fires or discharges any pistol, gun, rifle, firearm, cannon anvil loaded with powder, bow, airgun or sling, or projects any other dangerous missile within the city. B. Except as provided in Chapter 9.13 of this Code, any person who does any of the following without first obtaining a special permit therefore, in writing, from the Fire Chief, which permit shall designate the time and place of such firing or discharging, is guilty of a misdemeanor: 1. Possesses, dDischarges, or explodes any firecrackers, firerockets, roman candles, chasers, or other fireworks of any nature or kind; or 2. Makes any bonfire of any nature or kind, or who makes any bonfire or burns any hay, straw, rubbish, shavings, or other combustible materials within the city limits. C. The provisions of this Section do not prohibit any person from shooting destructive animals within or upon his own enclosure, nor prohibit the establishment and maintenance of shooting galleries, in accordance with the ordinances of the city. Section 2. Lodi Municipal Code Title 9 - Public Peace, Morals and Welfare, Chapter 9.13 - Sale of Fireworks, is hereby repealed and reenacted in its entirety, and shall read as follows: 9.13.010 Definitions. The following words and phrases, as used in this Chapter, are defined as follows: A. "Citee" means any person served with an administrative Citation charging him or her as a responsible person for violation of this Chapter. 1 "Citation" means an administrative citation Issued pursuant to this Chapter to remedy a violation. "City Manager" means the City Manager of the City of Lodi and/or designee or designees. "Code" means the Lodi Municipal Code. "Code Enforcement Officer" (CEO) means any Lodi firefighter or Lodi Police Officer and those Parks and Recreation employee's designated to have citation powers by the Parks and Recreation Director. F. "Dangerous Fireworks" mean Dangerous Fireworks as set forth in California State Fireworks Law (Sections 12505 and 12561 of the California Health and Safety Code and the relevant Sections of Title 19, Code of Regulations, Subchapter 6), as hereinafter may be amended from time to time, which are hereby incorporated by reference. G. "Director" means the City Manager and/or designee or designees. H. "Fire Chief" means the Fire Chief of the City of Lodi or other City Manager designee or designees. "Fireworks Task Force Costs" means those employee salary, overtime and benefit costs, disposal costs, clean-up costs, and operations costs incurred by the Lodi police, fire, and parks and recreation departments to operate a task force to enforce the provisions of this Chapter between June 28 and July 7 of each calendar year. Fireworks Task Force Costs shall not exceed twenty thousand dollars in the first year after the effective date of the ordinance from which this Chapter is derived, adjusted by the Consumer Price Index, San Francisco, All Consumers, annually thereafter. J. "Fireworks Wholesaler" means any person who sells fireworks to other wholesalers or retailers for resale; or any person, other than an importer, exporter, or manufacturer, who purchases fireworks from a manufacturer, importer or exporter for resale to a retailer or any other person for resale. K. "Hearing Officer" means the person appointed by the City Manager to serve as the Hearing Officer for administrative hearings under this Chapter. L. "Issuance" or "Issued" means 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 Article III (commencing with Section 415.10) of Chapter 4 of Title 5 of Part 2 of the Code of Civil Procedures; or 2. Mailing of administrative fine Citation to the Citee by certified mail with return receipt to the address shown on the county's latest equalized property taxes assessment rolls; or 2 3. By personally serving the responsible person 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 pre -paid, a copy to the recipient at the address where the copy was left; or b. In the event the Responsible person party cannot be served by First Class Mail, postage pre -paid, 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 pre -paid, to the responsible person party in violation at the address of the property where the violation exists. M. "Lodi City Clerk" or "City Clerk" means the Lodi City Clerk and/or designee or designees. "Nonprofit Organization" means: (1) any nonprofit association, charity, church, corporation, club, or society organized primarily for veteran, patriotic, welfare, civic, benevolent, betterment, youth activities, or charitable purposes and has obtained a nonprofit status with either the California Franchise Tax Board or the Internal Revenue Service; or (2) a group which is an integral part of a recognized nonprofit national organization having such tax exempt status; or (3) an organization affiliated with and officially recognized by an elementary, junior high school, high school, school district, and/or college that serves, in whole or in part, the residents of Lodi. To qualify as a "nonprofit" under in this definition, the entity must have a principal and permanent meeting place within the city limits of the City of Lodi. O. "Person" 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 Chapter occurred. "Principal and Permanent Meeting Place" means and includes, but is not limited to, a permanent structure, playing field, geographic area, or service population which resides in or is located within the city limits of the City of Lodi. "Residents of the City" or "City Residents" means and includes owners of businesses and/or property in the city limits as well as occupants of residential dwellings within the city limits of the City of Lodi. R. "Responsible Person" means 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. There is a rebuttable presumption that the record owner of real property, as shown on the county's latest equalized property 3 taxes assessment rolls, and a lessee of real property 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 eighteen 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. S. "Safe and Sane Fireworks" (a.k.a. "State -Approved Fireworks") mean Safe and Sane Fireworks as defined in California State Fireworks Law (Sections 12529 and 12562 of the Health and Safety Code and the relevant Sections of Title 19, Code of Regulations, Subchapter 6), as hereinafter may be amended from time to time, which are hereby incorporated by reference. T. "Violation" or "Violates" refers to any violation of any provision of this Chapter. 9.13.020 Sale and Discharge—Time limit. A. Subject to the provisions of this Chapter, the State Fireworks Law, Sections 12500 through 12728 147-26 of the California Health and Safety Code, and any regulations promulgated thereunder, Safe and Sane Fireworks, as defined herein, may be sold within the city limits of the City of Lodi only during the period beginning at 12:00 noon on June 28 and shall not continue after 9:00 p.m. on July 4 of the same year. The sale of fireworks shall be permitted only from 12:00 noon" to 9:00 p.m. on June 28; from 9:00 a.m. to 9:00 p.m. daily from June 29 through July 4. No fireworks classified as "Dangerous Fireworks" by Section 12505 of the California Health and Safety Code may be sold within the city limits of the City of Lodi. B. Subject to the provisions of this Chapter, the State Fireworks Law. Sections 12500 through 12728 of the California Health and Safety Code. and any regulations oromulaated thereunder, Safe and Sane Fireworks may be discharged within the city limits of the City of Lodi only on July 4. from 9:00 a.m. to 11:00 p.m. This subsection shall take effect on January 1, 2018. C. Subject to the provisions of this Chapter, the State Fireworks Law, Sections 12500 through 12728 12726 of the California Health and Safety Code, and any regulations promulgated thereunder, Safe and Sane Fireworks, as defined herein, may be discharged within the city limits of the City of Lodi only during the period beginning at 12:00 noon to 11:00 p.m. on June 28 and from 9:00 a.m. to 11:00 p.m., daily, from June 29 through July 4. This subsection shall expire and be of no further force or effect after midnight. December 31, 2017 D. No fireworks classified as "Dangerous Fireworks" by Section 12505 of the California Health and Safety Code may be discharged within the city limits of the City of Lodi. The use or discharge of fireworks within fifty feet of any fireworks sales stand is prohibited. 4 9.13.030 Permit Required—Issuance—Limitations. A. Except as provided in this Chapter, it is unlawful to offer for sale or sell at retail "Safe and Sane Fireworks" without having first applied for and been issued a permit therefor, in the manner set forth in this Chapter. B. Permits for the sale of Safe and Sane Fireworks shall be issued only to nonprofit organizations, and such fireworks shall be sold only at the outdoor sales stands, as more specifically set forth hereinafter. C. Permits shall be issued by lottery. The lottery shall take place at a time, place, and manner determined by the Fire Chief in accordance with administrative rules and procedures adopted by the Fire Chief. Each applicant shall receive one lot. D. No more than six such permits shall be issued and be outstanding at any time. E. No nonprofit organization may receive more than one permit for the sale of fireworks during any one calendar year. Only one application per school will be allowed. If an organization is affiliated with a recognized educational institution as defined in Section 9.13.010 of this Chapter, but maintains a separate tax-exempt status with the Internal Revenue Service or the California Franchise Tax Board, said nonprofit organization shall be allowed a separate application. F. No nonprofit organization may be awarded a permit for more than two consecutive calendar years. G. Any applicant that has had a fireworks sales permit suspended or revoked within the prior three calendar years shall be eligible for a fireworks sales permit only upon demonstrating to the Fire Chief's reasonable satisfaction that suitable arrangements have been made to preclude future violations. 9.13.040 Permit Application—Regulations—Limitations. A. All applications for a permit to sell fireworks may be filed with the Lodi Fire Department between the first business day in March and the last business day in March of each year. All applications shall be accompanied by an application fee in an amount as may be established from time to time by resolution of the City Council. B. All permit applications must be properly completed and submitted to the Lodi fire department before the close of business on the last business day in March. Permit applications that are incomplete or filed late shall not be processed. C. All permit applications shall be made in writing on a form supplied by the Lodi Fire Department. A completed permit application shall be accompanied by an assurance that, if the applicant is issued a permit, the applicant shall, before receipt of such permit, deliver to the city the following items and/or information: 1. Proper identification and signature of the permit applicant; 2. The proposed location of the fireworks sales stand; 5 3. A detailed description of the fireworks proposed to be sold; The written consent of the owner of record and/or lessor in control of the property upon which the proposed sales stand will be located; 5. The fireworks distributor's business name, address, telephone number, and person that is the point of contact; 6. A site plan, with dimensions indicating the location of all existing buildings, structures, driveways, flammable materials, and rights of way where the proposed sales stand will be located; 7. Proof of a temporary sales tax permit from the State Board of Equalization or proof of application; 8. A certificate of insurance evidencing current and valid commercial general liability, property damage, and product liability insurance of not less than two million dollars combined single limit, from a company authorized to transact the business of insurance in the State of California. The insurance company must have an AM Best Rating of not less than A-; 9. The certificate of insurance must provide an appropriate additional insured endorsement to the insurance policy or policies, which names the City of Lodi and its officers, employees, agents, and volunteers as additional insured's under the policy or policies; 10. Proof of a State Fire Marshal retail fireworks license; 11. Such other information and documentation that the Fire Chief in his or her reasonable discretion may require; 12. Temporary Event Permit. Each Applicant Shall Also File A Temporary Event Permit Application as required by Lodi Municipal Code Section 17.78.050 with the Community Development Department; 13. Reimbursement Agreement. An Agreement in a form to be obtained from the City Attorney's Office between the City of Lodi and the permittee's fireworks distributor, requiring the distributor to indemnify the city for that distributor's pro rata share of all Fireworks Task Force Costs incurred during the period that fireworks may be sold under this Chapter. D. Each applicant shall file with the city, at the time of filing the permit application, a nonrefundable application fee as may be established from time to time by resolution of the City Council. If selected in the lottery as a permittee, a letter of credit, certificate of deposit, or a surety bond made payable to the city in the amount as set by resolution of the City Council to assure compliance with the provisions of this Chapter shall be filed with the city. Such deposit certificate or bond shall be refundable upon compliance with the provisions and requirements of this Chapter, including but not limited to, the removal of the sales stand, cleaning of the site, and full passage of the city's final site inspection. 6 E. The Fire Chief is authorized to promulgate administrative regulations and procedures necessary for the successful and effective implementation of this Chapter including rules and procedures governing the submission of applications for permits to sell Safe and Sane Fireworks, inspections of fireworks stands, operation of fireworks stands, and such regulations relating to the sale of Safe and Sane Fireworks as may be necessary for the protection of life and property. Said administrative regulations and procedures shall be set forth in writing and are subject to prior approval by the City Attorney. 9.13.050 Prerequisites to Issuance of Permit. Permits to sell fireworks shall only be issued to applicants that meet all of the following qualifications: A. The applicant must be a nonprofit organization that conducts its activities primarily for the benefit of the city and its residents. B. The applicant must have been organized and established in the city limits of the City of Lodi for a minimum of one year continuously preceding the filing of application for the permit, and must have a bona fide membership of at least ten members who are residents of the City. 9.13.060 Permit applications—Notice of Acceptance or Rejection—Selection Procedure—Fee. A. The Fire Chief shall notify all applicants by the third Monday in April regarding the results of the lottery and the applicants that have been granted permits, and said successful lottery/prospective permittees will have until the close of business on the third Monday in May to submit their final paperwork required in subsection C of Section 9.13.040. If any successful lottery/prospective permittee fails to submit its paperwork by the deadline, in any given year, the Fire Chief shall give notice on the third Wednesday in May to the requisite number of substitute lottery applicants that they have until the second Monday in June to submit paperwork as required by subsection C of Section 9.13.040. B. All applicants that have been granted permits shall, prior to Issuance of the permit, pay a permit fee in an amount established from time to time by resolution of the City Council. The permit fee is intended to cover the cost of the first inspection of the fireworks stand. Any necessary subsequent inspections shall be subject to a re -inspection fee in an amount as established from time to time by resolution of the City Council. The letter of credit, certificate of deposit, or a surety bond made payable to the city and provided by the applicant pursuant to subsection D of Section 9.13.040 shall be held by the city to be available to cover the cost of removal of the fireworks sales stand and site clean-up in accordance with subsection P of Section 9.13.090. C. Each applicant that has been granted a permit shall have no Tess than two members of its sales staff attend an operator safety seminar approved and supervised by the Lodi Fire Department and provided by a licensed firework's wholesaler or the City of Lodi Fire Department. 9.13.070 Suspension of permit—Appeal procedure. A. The Fire Chief may suspend immediately and without notice or hearing the permit of any permittee that violates any California statute, rule, regulation, or this Code while operating or preparing to operate a fireworks sales stand during or immediately preceding any period of sale. 7 If the Fire Chief reasonably believes that a violation has occurred during, immediately preceding, or immediately following the authorized period of sale, he or she shall have power to prohibit the permittee from acquiring a fireworks sales permit in the future. B. Any decision of the Fire Chief made pursuant to this Chapter shall be subject to review by the City Manager. When the decision being appealed affects the current sale period, such review shall be held at the earliest possible time that the permittee, City Manager and the Fire Chief can schedule a hearing for such review. For decisions that do not affect the current sales period, the hearing shall be held within ten city business days after the request for hearing, which request must be made in writing within ten calendar days after notice of the decision being appealed. The City Manager may set aside the decision, modify it, or revoke in his or her reasonable discretion. The decision of the City Manager shall be final. 9.13.080 Fireworks Sales Stand—Operation. A. It is unlawful for the permittee to allow any person other than individuals who are members and/or volunteers of the permitted nonprofit organization, or the spouses or adult children of such members, to sell or otherwise participate in the sale of fireworks. B. It is unlawful for the permittee to pay any consideration to any person for selling or otherwise participating in the sale of fireworks. C. Each sales stand must have a minimum of one adult (twenty-one years of age or older) in attendance and in charge thereof while fireworks are stored therein. D. No person may sleep in or remain in the stand after close of business. E. All unsold fireworks must be removed from the stand during non -sale hours and stored in a centrally located locked metal container or other secure and fire safe structure during non - sale periods. Each fireworks distributor shall provide a single storage location and container for storage of its stand's fireworks. The container shall be approved by the Fire Chief and located in an M1 or M2 zoned location approved by the Community Development Director and the Fire Chief. F. Each sales stand must have on duty at all times during the sales period, at least one salesperson (twenty-one years of age or older) who attended the City of Lodi Fire Department operator safety seminar, required pursuant to subsection C of Section 9.13.060. G. The sale of fireworks shall conform to restrictions of Section 9.13.020. H. All unsold fireworks and accompanying litter shall be removed from the sales location by 10:00 p.m. on July 4 and the sales stand shall be removed by 12:00 noon on July 9 of each year. I. Permittees shall require all persons who appear to be under the age of thirty years to provide proof of age and shall make no sales of fireworks to persons younger than sixteen (16) cighteen years of age. 8 9.13.090 Fireworks sales stands—Requirements. All retail sales of "Safe and Sane Fireworks" shall be made only from within a temporary fireworks sales stand, and sales from any other building or structure is hereby prohibited. Fireworks sales stands are subject to the following requirements: A. Fireworks sales stands shall be put in place by the permittee no earlier than 8:00 a.m. on June 24 of each year. B. No fireworks sales stand shall be located within twenty-five feet of any other building or structure, within five feet of any curb line, or within one hundred feet of any gasoline pump. C. The stand must be located on a developed lot with paved parking areas and driveway approaches and the stand itself must be located on a paved surface. D. The stand may not occupy parking spaces required for the primary use of the site, or interfere with required access, circulation, fire lanes or fire hydrants. E. No fireworks stand shall be located within one hundred feet of any building used as a school, day care, hospital, place of detention, public garage, or place of assembly that can accommodate three hundred or more occupants, or within one hundred feet of a residential zone. Fireworks stands shall only be permitted in a district zoned CS, C2, CM, M1, or M2 or the PD designation equivalents. F. A minimum of twenty feet of separation shall be provided between the fireworks sales stand and any vehicle(s), with the exception of loading or unloading the permittee's supply vehicle. G. No weeds or other combustible materials are permitted within twenty-five feet of the fireworks sales stand. H. All fireworks sales stands shall be preapproved by the Fire Chief prior to opening for business. I. All general use fifteen amp and twenty amp receptacles shall have listed ground -fault circuit -interrupter protection and electrical installations shall be approved by the city building inspector and/or the Fire Department prior to the stand opening for business. J. All fireworks sales stands shall be built and maintained in accordance with the safety requirements of the city prior to opening for business. K. No generators shall be allowed within twenty-five feet of any fireworks sales stand. L. Smoking and the consumption of alcoholic beverages shall not be allowed within fifty feet of any fireworks sales stand and "no smoking" signs shall be displayed on and in the fireworks sales stand. M. Permittees shall place no signs in the public right-of-way. 9 N. Each fireworks sales stand shall be provided with two, two -and -one-half gallon pressurized water type fire extinguishers, or two 2A10BC dry chemical/powder type fire extinguishers, in good working order, and easily accessible for use in case of fire. 0. The fireworks sales stand shall be removed from the temporary location by 12:00 p.m. on July 9 of each year, all unsold fireworks by 10:00 p.m. July 4, and any accompanying litter shall be cleared from the location by 5:00 p.m. on July 5. If the permittee does not remove the stand and/or clean the sales site as required by this Chapter, the city may do so, or cause the same to be done, and the reasonable cost thereof shall be charged against the permittee, and his or her deposit, certificate, or surety. In addition, any permittee found to be in violation of this Section shall be subject to an administrative penalty imposed in accordance with Section 9.13.160. P. The permit to sell fireworks shall be displayed in a prominent place in the fireworks sales stand and shall at all times be visible to members of the public. Q. Each permittee under this Chapter shall display a poster measuring eighteen inches by thirty-two inches that shall be posted at the point of sale of the fireworks and hand out a flyer with each sale to notify purchasers of all applicable restrictions established by this Chapter. All information shall be provided in English and Spanish. The permittee shall provide the posters and fliers, which shall be approved by the Fire Chief prior to the permittee opening for business. R. Fireworks Stands shall be either twenty-four or thirty-two feet long by eight feet wide. Twenty -four -foot stands shall have two exits and a maximum occupancy of six people. Thirty- two -foot stands shall have two exits and a maximum occupancy of eight people. 9.13.100 Fee imposed Upon Permittees. A. The City of Lodi will require each applicant receiving a permit to pay a fee, as described in Section 1(e)(3) of Article XIII C of the California Constitution, and the City of Lodi will require each permittee to pay their pro rata portion of the costs that the City of Lodi has incurred related to the following: 1. Processing and issuing permits; 2. Inspection of fireworks stands; 3. Public education and awareness campaign regarding the safe and responsible use of Safe and Sane Fireworks and the dangers and risks posed by the use of illegal fireworks; and 4. With respect to the sale and use of Safe and Sane Fireworks, including extra personnel time, and cleanup of fireworks trash and debris. "Extra personnel time" shall be defined as employee or contracted employee time that the City of Lodi would not otherwise incur but for the sale and use of Safe and Sane Fireworks in the City of Lodi and is the amount to be paid by the Fireworks Wholesaler pursuant to subsection 9.13.040(C)(13). B. No permittee may offer for sale or sell Safe and Sane Fireworks, unless and until the permittee has paid to the city the fee imposed by this Section. 10 C. The fees established pursuant to this Section are not intended to generate excess revenue for the city, but rather to attempt to offset costs. 9.13.110 Temporary sales tax permit—Requirements. A. Each permittee must obtain a temporary sales tax permit from the State Board of Equalization. B. The temporary sales tax permit shall be displayed in a prominent place in the fireworks sales stand and at all times be visible to members of the public. 9.13.120 Possession of dangerous fireworks. California Health and Safety Code Section 12677 provides that it is unlawful for any person to possess Dangerous Fireworks without holding a valid permit and the criminal penalty for such violations is set forth in California Health and Safety Code Section 12700. In addition. or in the alternative, any person who possesses a gross weight, including packaging, of less than 25 pounds of unaltered Dangerous Fireworks, as defined in Section 12505 of the California Health and Safety Code. may be subject to an administrative fine as set forth in this Chapter. 9.13.130 Permissible Locations for Discharge. The discharge of fireworks in the city shall be limited to private property except as otherwise provided in this Chapter. No fireworks shall be discharged on public, or semipublic properties, or in a public street or right-of-way except in those areas approved in writing by the Fire Chief. For purposes of this Chapter, "semipublic" is defined as private property generally open for use by the public but not owned or maintained by a governmental body. Such property includes without limitation church property, shopping center property, and other property generally used by patrons of a commercial or private business establishment, but not including private streets in residential areas. 9.13.140 Prohibitions on discharge. A. It is unlawful for any person to ignite, explode, project, or otherwise fire or use any fireworks, or permit the ignition, explosion, or projection thereof, upon, over, or onto the property of another without his or her consent, or to ignite, explode, project, or otherwise fire or make use of, any fireworks within ten feet of any residential dwelling or other structure used as a place of habitation by human beings. B. Except as provided in subsection C of this Section, it is unlawful for individuals under sixteen (16) eighteen years of age to , purchase, possess, use, or discharge "Safe and Sane Fireworks." C. It is unlawful for any person having the care, custody, or control of a minor under the age of eighteen (18) years to permit such minor to discharge, explode, fire, or set off any dangerous, illegal fireworks, at any time. eFlt is unlawful for any person having the care, custody, or control of a minor under the age of sixteen (16) years 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 eighteen years of age and during the hours and on the days permitted by this chapter. 9.13.150 Seizure of fireworks Reser. 11 A. Pursuant to California Health and Safety Code Section 12500 et seq., the Fire Chief, his or her authorized representatives. and law enforcement officers may seize any fireworks described in California Health and Safety Code Section 12722, including, but not limited to: 1. Dangerous Fireworks. including fireworks kits. used. possessed. stored. manufactured, or transported by a person who does not possess a valid permits 2. Safe and Sane Fireworks stored in violation of the conditions required by a permit; 3. Safe and Sane Fireworks sold or offered for sale at retail that do not bear the State Fire Marshal label of registration and firing instructions, 4. Safe and Sane Fireworks sold or offered for sale at retail that are in unsealed packages or containers that do not bear the State Fire Marshal label of registration and firing instructions, and 5. Fireworks still possessed by a person who has just thrown any ignited fireworks at a person or group of persons. B. The City may charge any person, firm, or corporation, whose fireworks are seized pursuant to this Section or the State Fireworks Law, an amount which is sufficient to cover the cost of transporting, storing, and handling the seized fireworks. If the City or a court determines that a person's. firm's, or corporation's fireworks are illegally or erroneously seized, or if legal proceedings do not result in a conviction for violation of any provision of the Lodi Municipal Code or State Fireworks Law, any funds collected pursuant to this Section or the State Fireworks Law shall be refunded, or if charged but unpaid, canceled. 9.13.160 Administrative penalties—Appeals. A. 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 citizens of the City of Lodi. 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 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 California Health and Safety Code Section 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 Section 53069.4, Health and Safety Code Section 12557, and the police power of the City of Lodi. B. The issuance of citations imposing administrative fines may be performed at the discretion of the officials of the City of Lodi; and the issuance of a citation to any person constitutes but one remedy of the city to redress violations of this Chapter 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 Chapter by any person, which this city may otherwise pursue. 12 C. The imposition of fines related to "Dangerous Fireworks" under this Chapter shall be limited to persons who possess, sell, use and/or display, or the seizure of, twenty-five pounds or less (gross weight) of such Dangerous Fireworks. D. Fines collected pursuant to this Chapter related to "Dangerous Fireworks" shall not be subject to Health and Safety Code Section 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 of California, the city shall hold in trust two hundred fifty dollars or twenty-five 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." E. 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 Chapter 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 real property for all violations of this Chapter existing on their real property. Each individual use, display, and/or possession shall constitute a separate violation and each shall be subject to a separate administrative fine. 9.13.170 Issuance of Administrative Citation—Contents. A. 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(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. B. Each administrative Citation shall contain the following information: 1 The name, mailing address, date of birth, CDL number (if available), and home or business telephone number of the responsible person charged with any violation of this Chapter; 2. The address or description of the location of the violation; 3. The date or dates on which the person violated this Chapter; 4. The Section or Sections of this Chapter that were violated; 5. A description of the violation(s); 6. The amount of the administrative fine for each violation, the procedure in place to pay the fines, and any late fee and interest charge(s), 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; 13 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); 8. The names, addresses, and telephone numbers of any witnesses to the violation(s); 9. 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 failure or refusal of a Citee to sign a citation or provide the information required on the 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 this Chapter; 10. Any other information deemed necessary by the Director for enforcement or collection purposes. 9.13.175 Third -party Administrative Citations. A. Whenever one or more private persons observe a violation of this Chapter of the Lodi Municipal Code, they may request that an administrative citation be issued to a responsible person by a CEO. The private persons will be required to sign an affidavit under penalty of perjury verifying that they personally observed a violation of this Code, and may be required to testify at an administrative hearing as provided in this Chapter of the Lodi Municipal Code if the administrative citation is appealed. Failure of the private persons to testify at an administrative hearing if required by the department prosecuting the violation on behalf of the private persons may result in a dismissal of the administrative citation. The CEO shall have the discretionary authority to issue an administrative Citation to a responsible person where, on the basis of an affidavit and any other available evidence, a violation of this Chapter of the Lodi Municipal Code has occurred. B. Each third -party administrative citation shall contain: 1. The date of the violation: 2. The address or a definite description of the location where the violation occurred; 3. The section of this Code violated and a description of the violation: 4. The amount of the fine for the Code violation.; 5. A description of the fine _payment process. including a description of the time within which and the place to which the fine must be paid; 6. An order prohibiting the continuation or repeated occurrence of the Code violation described in the administrative citation, 7. A description of the administrative citation review process, including the time within which the administrative citation may be contested and the place from which a request for hearing form to contest the administrative citation may be obtained: 14 The name: signature and department issuing the citation on behalf of the private persons. C. Each third -party administrative citation shall be accompanied by an affidavit from the private persons setting forth a description of the violation as observed by the private persons signed under penalty of perjury. 9.13.180 Administrative fines. A. Each person who violates any provision of this Chapter 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: Number of offense in 1 year period Amount of Administrative Penalty Late Charge Total Amount of Penalty plus Late Charge First $1,000.00 $250.00 $1,250.00 Second $2,000.00 $500.00 $2,500.00 Third $3,000.00 $1,000.00 $4,000.00 B. Each person who uses "Safe and Sane Fireworks" on or at dates, times, and/or locations other than those permitted by the ordinance codified in this Chapter shall be subject to the imposition and payment of an administrative fine or fines as provided below: Number of offense in 1 year period Amount of Administrative Penalty First Late Charge $250.00 $75.00 Total Amount of Penalty plus Late Charge $325.00 Second $500.00 $150.00 Third $750.00 $300.00 $650.00 $1,050.00 C. In the case of a violation of any of the provisions listed above, the administrative fine(s) shall be due and payable within thirty 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 Section 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 twelve-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. D. All administrative fines and any late charges and interest 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 this Chapter 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 15 compliance with the provisions of the Code so violated including the Issuance of additional citations and/or criminal prosecution. E. Upon confirmation of the citation or when the citation is deemed confirmed, all unpaid administrative fines, late fees, and/or interest 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 interest. F. 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(s) of a violation of this Chapter. 9.13.190 Right to an Administrative Hearing. A. Any Citee may contest the violation(s), or that he or she is a responsible person, by filing a request for an administrative hearing on a city -approved form with the Lodi Fire Chiefs office within thirty calendar days from the issuance date of a citation. If the Fire Chief 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. B. No fees shall be charged for the filing of a request for a hearing. C. Citees must 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 if the citation is overturned. D. A request for a hearing shall contain the following. 1. The citation number; 2. The name, address, telephone number, and any facsimile numbers and e-mail addresses of each person contesting the citation; 3. A statement of the reason(s) why a citation is being contested; 4. The date and signature of the Citee(s). E. The city will notify all persons who file 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. F. The hearing will be conducted within sixty calendar days of the date a timely and complete request is received by the Fire Chief's office. 16 G. 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 Tess 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. 9.13.200 Administrative Hearing—Procedures. A. 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. B. Administrative hearings are informal, and formal rules of evidence and discovery do not apply. Photographs of seized fireworks shall be admissible evidence of the violation. The city bears the burden of proof to establish a violation and responsibility therefore by a preponderance of evidence. The citation is prima facie evidence of the violation, however, the CEO who issued the citation is required to attend or participate at the hearing. The Citee(s) and CEO, if present, shall have an opportunity to present evidence and witnesses and to cross- examine witnesses. C. 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 or she 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. D. 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. 9.13.210 Hearing Decision—Right of Appeal. A. 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 therefore. B. The Hearing Officer shall serve Citee(s) 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. C. The decisions of the Hearing Officer may be appealed by the Citee to the City Council within thirty calendar days after the date of service of the decision. Each decision shall contain a statement advising the Citee of this appeal right and the procedure for its exercise. D. If a Hearing Officer's decision is not appealed in a timely manner, the decision shall be deemed confirmed. E. If a responsible person prevails on appeal, the city shall reimburse his or her fine deposit within thirty calendar days of the City Council's decision on the appeal. 17 9.13.220 Financial Reporting. On or before September 1 of any year authorized pursuant to a permit, the permittee shall submit to the City Clerk a financial statement by the treasurer or financial officer of the permittee setting forth the total gross receipts from the fireworks stand operated by the permittee; all expenses incurred and paid in connection with the purchase of fireworks and the sale thereof; and the most recent report filed by the permittee to the State Board of Equalization. The filing of such statement shall be a condition precedent to the granting of any subsequent permit under this Chapter. 9.13.230 Provisions Supplementary. The provisions of this Chapter are supplementary to the provisions of the Fire Code of the City of Lodi. In case of a direct conflict between the provisions of the Fire Code of the city, and the provisions of this Chapter, the provisions of this Chapter shall prevail. Except with respect to such direct conflict, the provisions of the Fire Code of City of Lodi shall remain in full force and effect. Section 3. No Mandatory Duty of Care. This ordinance is not intended to and shall not be construed or given effect in a manner which imposes upon the City, or any officer or employee thereof, a mandatory duty of care towards persons or property within the City or outside of the City so as to provide a basis of civil liability for damages, except as otherwise imposed by law. Section 4. Severability. If any provision of this ordinance or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the ordinance which can be given effect without the invalid provision or application. To this end, the provisions of this ordinance are severable. The City Council hereby declares that it would have adopted this ordinance irrespective of the invalidity of any particular portion thereof. Section 5. All ordinances and parts of ordinances in conflict herewith are repealed insofar as such conflict may exist. Section 6. Effective Date and Publication. This Ordinance shall take effect thirty (30) days after its adoption. In lieu of publication of the full text of the ordinance within fifteen (15) days after its passage, a summary of the ordinance may be published at least five (5) days prior to and fifteen (15) days after adoption by the City Council, and a certified copy shall be posted in the office of the City Clerk pursuant to Government Code Section 36933(c)(1). Approved this day of 2017 DOUG KUEHNE Attest: Mayor JENNIFER M. FERRAIOLO City Clerk 18 State of California County of San Joaquin, ss. I, Jennifer M. Ferraiolo, City Clerk of the City of Lodi, do hereby certify that Ordinance No. was introduced at a regular meeting of the City Council of the City of Lodi held May 3, 2017, and was thereafter passed, adopted, and ordered to print at a regular meeting of said Council held 2017, by the following vote: AYES: COUNCIL MEMBERS — NOES: COUNCIL MEMBERS — ABSENT: COUNCIL MEMBERS — ABSTAIN: COUNCIL MEMBERS — I further certify that Ordinance No. was approved and signed by the Mayor on the date of its passage and the same has been published pursuant to law. Approved as to Form: JOHN P. FUKASAWA /it City Attorney 19 JENNIFER M. FERRAIOLO City Clerk ORDINANCE NO. 1943 AN ORDINANCE OF THE LODI CITY COUNCIL AMENDING LODI MUNICIPAL CODE TITLE 9 – PUBLIC PEACE, MORALS AND WELFARE, SECTION 9.12.010 AND REPEALING AND RE- ENACTING CHAPTER 9.13 IN ITS ENTIRETY BE IT ORDAINED BY THE LODI CITY COUNCIL AS FOLLOWS: Section 1. Lodi Municipal Code Title 9 - Public Peace, Morals and Welfare, Section 9.12.010 - Discharge of Weapons and Fireworks -Fires - is hereby amended and shall read as follows: 9.12.010 Discharge of Weapons and Fireworks—Fires. A. Any person who does any of the following without first obtaining a special permit therefore, in writing, from the Chief of Police, which permit shall designate the time and place of such firing or discharging, is guilty of a misdemeanor: 1. Fires or discharges any pistol, gun, rifle, firearm, cannon anvil loaded with powder, bow, airgun or sling, or projects any other dangerous missile within the city. B. Except as provided in Chapter 9.13 of this Code, any person who does any of the following without first obtaining a special permit therefore, in writing, from the Fire Chief, which permit shall designate the time and place of such firing or discharging, is guilty of a misdemeanor: 1. Discharges, or explodes any firecrackers, firerockets, roman candles, chasers, or other fireworks of any nature or kind; or 2. Makes any bonfire of any nature or kind, or who makes any bonfire or burns any hay, straw, rubbish, shavings, or other combustible materials within the city limits. C. The provisions of this Section do not prohibit any person from shooting destructive animals within or upon his own enclosure, nor prohibit the establishment and maintenance of shooting galleries, in accordance with the ordinances of the city. Section 2. Lodi Municipal Code Title 9 - Public Peace, Morals and Welfare, Chapter 9.13 - Sale of Fireworks, is hereby repealed and reenacted in its entirety, and shall read as follows: 9.13.010 Definitions. The following words and phrases, as used in this Chapter, are defined as follows: A. "Citee" means any person or responsible person served with an administrative Citation charging him or her as a responsible person for violation of this Chapter. B. "Citation" means an administrative citation Issued pursuant to this Chapter to remedy a violation. 1 C. "City Manager" means the City Manager of the City of Lodi and/or designee or designees. D. "Code" means the Lodi Municipal Code. E. "Code Enforcement Officer" (CEO) means any Lodi firefighter or Lodi Police Officer and those Parks and Recreation employee's designated to have citation powers by the Parks and Recreation Director. F "Dangerous Fireworks" mean Dangerous Fireworks as set forth in California State Fireworks Law (Sections 12505 and 12561 of the California Health and Safety Code and the relevant Sections of Title 19, Code of Regulations, Subchapter 6), as hereinafter may be amended from time to time, which are hereby incorporated by reference. "Director" means the City Manager and/or designee or designees. H. "Fire Chief" means the Fire Chief of the City of Lodi or other City Manager designee or designees. "Fireworks Task Force Costs" means those employee salary, overtime and benefit costs, disposal costs, clean-up costs, and operations costs incurred by the Lodi police, fire, and parks and recreation departments to operate a task force to enforce the provisions of this Chapter between June 28 and July 7 of each calendar year. Fireworks Task Force Costs shall not exceed twenty thousand dollars in the first year after the effective date of the ordinance from which this Chapter is derived, adjusted by the Consumer Price Index, San Francisco, All Consumers, annually thereafter. J. "Fireworks Wholesaler" means any person who sells fireworks to other wholesalers or retailers for resale; or any person, other than an importer, exporter, or manufacturer, who purchases fireworks from a manufacturer, importer or exporter for resale to a retailer or any other person for resale. K. "Hearing Officer" means the person appointed by the City Manager to serve as the Hearing Officer for administrative hearings under this Chapter. L. "Issuance" or "Issued" means 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 Article III (commencing with Section 415.10) of Chapter 4 of Title 5 of Part 2 of the Code of Civil Procedures; or 2. Mailing of administrative fine Citation to the Citee by certified mail with return receipt to the address shown on the county's latest equalized property taxes assessment rolls; or 3. By personally serving the responsible person 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, 2 and thereafter mailing by First Class Mail, postage pre -paid, a copy to the recipient at the address where the copy was left; or b. In the event the Responsible person cannot be served by First Class Mail, postage pre -paid, 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 pre -paid, to the responsible person in violation at the address of the property where the violation exists. M. "Lodi City Clerk" or "City Clerk" means the Lodi City Clerk and/or designee or designees. N. "Nonprofit Organization" means: (1) any nonprofit association, charity, church, corporation, club, or society organized primarily for veteran, patriotic, welfare, civic, benevolent, betterment, youth activities, or charitable purposes and has obtained a nonprofit status with either the California Franchise Tax Board or the Internal Revenue Service; or (2) a group which is an integral part of a recognized nonprofit national organization having such tax exempt status; or (3) an organization affiliated with and officially recognized by an elementary, junior high school, high school, school district, and/or college that serves, in whole or in part, the residents of Lodi. To qualify as a "nonprofit" under in this definition, the entity must have a principal and permanent meeting place within the city limits of the City of Lodi. "Person" 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 Chapter occurred. P. "Principal and Permanent Meeting Place" means and includes, but is not limited to, a permanent structure, playing field, geographic area, or service population which resides in or is located within the city limits of the City of Lodi. Q. "Residents of the City" or "City Residents" means and includes owners of businesses and/or property in the city limits as well as occupants of residential dwellings within the city limits of the City of Lodi. R. "Responsible Person" means 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. There is a rebuttable presumption that the record owner of real property, as shown on the county's latest equalized property taxes assessment rolls, and a lessee of real property 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 eighteen 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. 3 S. "Safe and Sane Fireworks" (a.k.a. "State -Approved Fireworks") mean Safe and Sane Fireworks as defined in California State Fireworks Law (Sections 12529 and 12562 of the Health and Safety Code and the relevant Sections of Title 19, Code of Regulations, Subchapter 6), as hereinafter may be amended from time to time, which are hereby incorporated by reference. T. "Violation" or "Violates" refers to any violation of any provision of this Chapter. 9.13.020 Sale and Discharge—Time limit. A. Subject to the provisions of this Chapter, the State Fireworks Law, Sections 12500 through 12728 of the California Health and Safety Code, and any regulations promulgated thereunder, Safe and Sane Fireworks, as defined herein, may be sold within the city limits of the City of Lodi only during the period beginning at 12:00 noon on June 28 and shall not continue after 9:00 p.m. on July 4 of the same year. The sale of fireworks shall be permitted only from 12:00 noon to 9:00 p.m. on June 28; from 9:00 a.m. to 9:00 p.m. daily from June 29 through July 4. No fireworks classified as "Dangerous Fireworks" by Section 12505 of the California Health and Safety Code may be sold within the city limits of the City of Lodi. B. Subject to the provisions of this Chapter, the State Fireworks Law, Sections 12500 through 12728 of the California Health and Safety Code, and any regulations promulgated thereunder, Safe and Sane Fireworks may be discharged within the city limits of the City of Lodi only on July 4, from 9:00 a.m. to 11:00 p.m. C. No fireworks classified as "Dangerous Fireworks" by Section 12505 of the California Health and Safety Code may be discharged within the city limits of the City of Lodi. D. The use or discharge of fireworks within fifty feet of any fireworks sales stand is prohibited. 9.13.030 Permit Required—Issuance—Limitations. A. Except as provided in this Chapter, it is unlawful to offer for sale or sell at retail "Safe and Sane Fireworks" without having first applied for and been issued a permit therefor, in the manner set forth in this Chapter. B. Permits for the sale of Safe and Sane Fireworks shall be issued only to nonprofit organizations, and such fireworks shall be sold only at the outdoor sales stands, as more specifically set forth hereinafter. C. Permits shall be issued by lottery. The lottery shall take place at a time, place, and manner determined by the Fire Chief in accordance with administrative rules and procedures adopted by the Fire Chief. Each applicant shall receive one lot. D. No more than six such permits shall be issued and be outstanding at any time. E. No nonprofit organization may receive more than one permit for the sale of fireworks during any one calendar year. Only one application per school will be allowed. If an organization is affiliated with a recognized educational institution as defined in Section 9.13.010 of this Chapter, but maintains a separate tax-exempt status with the Internal Revenue Service or the California Franchise Tax Board, said nonprofit organization shall be allowed a separate application. F. No nonprofit organization may be awarded a permit for more than two consecutive calendar years. 4 G. Any applicant that has had a fireworks sales permit suspended or revoked within the prior three calendar years shall be eligible for a fireworks sales permit only upon demonstrating to the Fire Chief's reasonable satisfaction that suitable arrangements have been made to preclude future violations. 9.13.040 Permit Application—Regulations—Limitations. A. All applications for a permit to sell fireworks may be filed with the Lodi Fire Department between the first business day in March and the last business day in March of each year. All applications shall be accompanied by an application fee in an amount as may be established from time to time by resolution of the City Council. B. All permit applications must be properly completed and submitted to the Lodi fire department before the close of business on the last business day in March. Permit applications that are incomplete or filed late shall not be processed. C. All permit applications shall be made in writing on a form supplied by the Lodi Fire Department. A completed permit application shall be accompanied by an assurance that, if the applicant is issued a permit, the applicant shall, before receipt of such permit, deliver to the city the following items and/or information: 1. Proper identification and signature of the permit applicant; 2. The proposed location of the fireworks sales stand; 3. A detailed description of the fireworks proposed to be sold; 4. The written consent of the owner of record and/or lessor in control of the property upon which the proposed sales stand will be located; 5. The fireworks distributor's business name, address, telephone number, and person that is the point of contact; 6. A site plan, with dimensions indicating the location of all existing buildings, structures, driveways, flammable materials, and rights of way where the proposed sales stand will be located; 7. Proof of a temporary sales tax permit from the State Board of Equalization or proof of application; 8. A certificate of insurance evidencing current and valid commercial general liability, property damage, and product liability insurance of not less than two million dollars combined single limit, from a company authorized to transact the business of insurance in the State of California. The insurance company must have an AM Best Rating of not less than A-; 9. The certificate of insurance must provide an appropriate additional insured endorsement to the insurance policy or policies, which names the City of Lodi and its officers, employees, agents, and volunteers as additional insured's under the policy or policies; 10. Proof of a State Fire Marshal retail fireworks license; 5 11. Such other information and documentation that the Fire Chief in his or her reasonable discretion may require; 12. Temporary Event Permit. Each Applicant Shall Also File A Temporary Event Permit Application as required by Lodi Municipal Code Section 17.78.050 with the Community Development Department; 13. Reimbursement Agreement. An Agreement in a form to be obtained from the City Attorney's Office between the City of Lodi and the permittee's fireworks distributor, requiring the distributor to indemnify the city for that distributor's pro rata share of all Fireworks Task Force Costs incurred during the period that fireworks may be sold under this Chapter. D. Each applicant shall file with the city, at the time of filing the permit application, a nonrefundable application fee as may be established from time to time by resolution of the City Council. If selected in the lottery as a permittee, a letter of credit, certificate of deposit, or a surety bond made payable to the city in the amount as set by resolution of the City Council to assure compliance with the provisions of this Chapter shall be filed with the city. Such deposit certificate or bond shall be refundable upon compliance with the provisions and requirements of this Chapter, including but not limited to, the removal of the sales stand, cleaning of the site, and full passage of the city's final site inspection. E. The Fire Chief is authorized to promulgate administrative regulations and procedures necessary for the successful and effective implementation of this Chapter including rules and procedures governing the submission of applications for permits to sell Safe and Sane Fireworks, inspections of fireworks stands, operation of fireworks stands, and such regulations relating to the sale of Safe and Sane Fireworks as may be necessary for the protection of life and property. Said administrative regulations and procedures shall be set forth in writing and are subject to prior approval by the City Attorney. 9.13.050 Prerequisites to Issuance of Permit. Permits to sell fireworks shall only be issued to applicants that meet all of the following qualifications: A. The applicant must be a nonprofit organization that conducts its activities primarily for the benefit of the city and its residents. B. The applicant must have been organized and established in the city limits of the City of Lodi for a minimum of one year continuously preceding the filing of application for the permit, and must have a bona fide membership of at least ten members who are residents of the City. 9.13.060 Permit applications—Notice of Acceptance or Rejection—Selection Procedure—Fee. A. The Fire Chief shall notify all applicants by the third Monday in April regarding the results of the lottery and the applicants that have been granted permits, and said successful lottery/prospective permittees will have until the close of business on the third Monday in May to submit their final paperwork required in subsection C of Section 9.13.040. If any successful lottery/prospective permittee fails to submit its paperwork by the deadline, in any given year, the Fire Chief shall give notice on the third Wednesday in May to the requisite number of substitute lottery applicants that they have until the second Monday in June to submit paperwork as required by subsection C of Section 9.13.040. B. All applicants that have been granted permits shall, prior to Issuance of the permit, pay a permit fee in an amount established from time to time by resolution of the City Council. The 6 permit fee is intended to cover the cost of the first inspection of the fireworks stand. Any necessary subsequent inspections shall be subject to a re -inspection fee in an amount as established from time to time by resolution of the City Council. The letter of credit, certificate of deposit, or a surety bond made payable to the city and provided by the applicant pursuant to subsection D of Section 9.13.040 shall be held by the city to be available to cover the cost of removal of the fireworks sales stand and site clean-up in accordance with subsection P of Section 9.13.090. C. Each applicant that has been granted a permit shall have no Tess than two members of its sales staff attend an operator safety seminar approved and supervised by the Lodi Fire Department and provided by a licensed firework's wholesaler or the City of Lodi Fire Department. 9.13.070 Suspension of permit—Appeal procedure. A. The Fire Chief may suspend immediately and without notice or hearing the permit of any permittee that violates any California statute, rule, regulation, or this Code while operating or preparing to operate a fireworks sales stand during or immediately preceding any period of sale. If the Fire Chief reasonably believes that a violation has occurred during, immediately preceding, or immediately following the authorized period of sale, he or she shall have power to prohibit the permittee from acquiring a fireworks sales permit in the future. B. Any decision of the Fire Chief made pursuant to this Chapter shall be subject to review by the City Manager. When the decision being appealed affects the current sale period, such review shall be held at the earliest possible time that the permittee, City Manager and the Fire Chief can schedule a hearing for such review. For decisions that do not affect the current sales period, the hearing shall be held within ten city business days after the request for hearing, which request must be made in writing within ten calendar days after notice of the decision being appealed. The City Manager may set aside the decision, modify it, or revoke in his or her reasonable discretion. The decision of the City Manager shall be final. 9.13.080 Fireworks Sales Stand—Operation. A. It is unlawful for the permittee to allow any person other than individuals who are members and/or volunteers of the permitted nonprofit organization, or the spouses or adult children of such members, to sell or otherwise participate in the sale of fireworks. B. It is unlawful for the permittee to pay any consideration to any person for selling or otherwise participating in the sale of fireworks. C. Each sales stand must have a minimum of one adult (twenty-one years of age or older) in attendance and in charge thereof while fireworks are stored therein. D. No person may sleep in or remain in the stand after close of business. E. All unsold fireworks must be removed from the stand during non -sale hours and stored in a centrally located locked metal container or other secure and fire safe structure during non - sale periods. Each fireworks distributor shall provide a single storage location and container for storage of its stand's fireworks. The container shall be approved by the Fire Chief and located in an M1 or M2 zoned location approved by the Community Development Director and the Fire Chief. F. Each sales stand must have on duty at all times during the sales period, at least one salesperson (twenty-one years of age or older) who attended the City of Lodi Fire Department operator safety seminar, required pursuant to subsection C of Section 9.13.060. 7 G. The sale of fireworks shall conform to restrictions of Section 9.13.020. H. All unsold fireworks and accompanying litter shall be removed from the sales location by 10:00 p.m. on July 4 and the sales stand shall be removed by 12:00 noon on July 9 of each year. I. Permittees shall require all persons who appear to be under the age of thirty years to provide proof of age and shall make no sales of fireworks to persons younger than eighteen years of age. 9.13.090 Fireworks sales stands—Requirements. All retail sales of "Safe and Sane Fireworks" shall be made only from within a temporary fireworks sales stand, and sales from any other building or structure is hereby prohibited. Fireworks sales stands are subject to the following requirements: A. Fireworks sales stands shall be put in place by the permittee no earlier than 8:00 a.m. on June 24 of each year. B. No fireworks sales stand shall be located within twenty-five feet of any other building or structure, within five feet of any curb line, or within one hundred feet of any gasoline pump. C. The stand must be located on a developed lot with paved parking areas and driveway approaches and the stand itself must be located on a paved surface. D. The stand may not occupy parking spaces required for the primary use of the site, or interfere with required access, circulation, fire lanes or fire hydrants. E. No fireworks stand shall be located within one hundred feet of any building used as a school, day care, hospital, place of detention, public garage, or place of assembly that can accommodate three hundred or more occupants, or within one hundred feet of a residential zone. Fireworks stands shall only be permitted in a district zoned CS, C2, CM, M1, or M2 or the PD designation equivalents. F. A minimum of twenty feet of separation shall be provided between the fireworks sales stand and any vehicle(s), with the exception of loading or unloading the permittee's supply vehicle. G. No weeds or other combustible materials are permitted within twenty-five feet of the fireworks sales stand. H. All fireworks sales stands shall be preapproved by the Fire Chief prior to opening for business. All general use fifteen amp and twenty amp receptacles shall have listed ground -fault circuit -interrupter protection and electrical installations shall be approved by the city building inspector and/or the Fire Department prior to the stand opening for business. J. All fireworks sales stands shall be built and maintained in accordance with the safety requirements of the city prior to opening for business. K. No generators shall be allowed within twenty-five feet of any fireworks sales stand. 8 L. Smoking and the consumption of alcoholic beverages shall not be allowed within fifty feet of any fireworks sales stand and "no smoking" signs shall be displayed on and in the fireworks sales stand. M. Permittees shall place no signs in the public right-of-way. N. Each fireworks sales stand shall be provided with two, two -and -one-half gallon pressurized water type fire extinguishers, or two 2A10BC dry chemical/powder type fire extinguishers, in good working order, and easily accessible for use in case of fire. 0. The fireworks sales stand shall be removed from the temporary location by 12:00 p.m. on July 9 of each year, all unsold fireworks by 10:00 p.m. July 4, and any accompanying litter shall be cleared from the location by 5:00 p.m. on July 5. If the permittee does not remove the stand and/or clean the sales site as required by this Chapter, the city may do so, or cause the same to be done, and the reasonable cost thereof shall be charged against the permittee, and his or her deposit, certificate, or surety. In addition, any permittee found to be in violation of this Section shall be subject to an administrative penalty imposed in accordance with Section 9.13.160. P. The permit to sell fireworks shall be displayed in a prominent place in the fireworks sales stand and shall at all times be visible to members of the public. Q. Each permittee under this Chapter shall display a poster measuring eighteen inches by thirty-two inches that shall be posted at the point of sale of the fireworks and hand out a flyer with each sale to notify purchasers of all applicable restrictions established by this Chapter. All information shall be provided in English and Spanish. The permittee shall provide the posters and fliers, which shall be approved by the Fire Chief prior to the permittee opening for business. R. Fireworks Stands shall be either twenty-four or thirty-two feet long by eight feet wide. Twenty -four -foot stands shall have two exits and a maximum occupancy of six people. Thirty- two -foot stands shall have two exits and a maximum occupancy of eight people. 9.13.100 Fee imposed Upon Permittees. A. The City of Lodi will require each applicant receiving a permit to pay a fee, as described in Section 1(e)(3) of Article XIII C of the California Constitution, and the City of Lodi will require each permittee to pay their pro rata portion of the costs that the City of Lodi has incurred related to the following: 1. Processing and issuing permits; 2. Inspection of fireworks stands; 3. Public education and awareness campaign regarding the safe and responsible use of Safe and Sane Fireworks and the dangers and risks posed by the use of illegal fireworks; and 4. With respect to the sale and use of Safe and Sane Fireworks, including extra personnel time, and cleanup of fireworks trash and debris. "Extra personnel time" shall be defined as employee or contracted employee time that the City of Lodi would not otherwise incur but for the sale and use of Safe and Sane Fireworks in the City of Lodi and is the amount to be paid by the Fireworks Wholesaler pursuant to subsection 9.13.040(C)(13). 9 B. No permittee may offer for sale or sell Safe and Sane Fireworks, unless and until the permittee has paid to the city the fee imposed by this Section. C. The fees established pursuant to this Section are not intended to generate excess revenue for the city, but rather to attempt to offset costs. 9.13.110 Temporary Sales Tax Permit—Requirements. A. Each permittee must obtain a temporary sales tax permit from the State Board of Equalization. B. The temporary sales tax permit shall be displayed in a prominent place in the fireworks sales stand and at all times be visible to members of the public. 9.13.120 Possession of Dangerous Fireworks. California Health and Safety Code Section 12677 provides that it is unlawful for any person to possess Dangerous Fireworks without holding a valid permit and the criminal penalty for such violations is set forth in California Health and Safety Code Section 12700. In addition, or in the alternative, any person who possesses a gross weight, including packaging, of less than 25 pounds of unaltered Dangerous Fireworks, as defined in Section 12505 of the California Health and Safety Code, may be subject to an administrative fine as set forth in this Chapter. 9.13.130 Permissible Locations for Discharge. The discharge of fireworks in the city shall be limited to private property except as otherwise provided in this Chapter. No fireworks shall be discharged on public, or semipublic properties, or in a public street or right-of-way except in those areas approved in writing by the Fire Chief. For purposes of this Chapter, "semipublic" is defined as private property generally open for use by the public but not owned or maintained by a governmental body. Such property includes without limitation church property, shopping center property, and other property generally used by patrons of a commercial or private business establishment, but not including private streets in residential areas. 9.13.140 Prohibitions on Discharge. A. It is unlawful for any person or responsible person to ignite, explode, project, or otherwise fire or use any fireworks, or permit the ignition, explosion, or projection thereof, upon, over, or onto the property of another without his or her consent, or to ignite, explode, project, or otherwise fire or make use of, any fireworks within ten feet of any residential dwelling or other structure used as a place of habitation by human beings. B. Except as provided in subsection C of this Section, it is unlawful for individuals under eighteen years of age to sell, purchase, possess, use, or discharge "Safe and Sane Fireworks." C. It is unlawful for any person having the care, custody, or control of a minor under the age of eighteen years to permit such minor to discharge, explode, fire, or set off any dangerous, illegal 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 eighteen years of age and during the hours and on the days permitted by this chapter. 10 9.13.150 Seizure of Fireworks. A. Pursuant to California Health and Safety Code Section 12500 et seq., the Fire Chief, his or her authorized representatives, and law enforcement officers may seize any fireworks described in California Health and Safety Code Section 12722, including, but not limited to: 1. Dangerous Fireworks, including fireworks kits, used, possessed, stored, manufactured, or transported by a person who does not possess a valid permit; 2. Safe and Sane Fireworks stored in violation of the conditions required by a permit; 3. Safe and Sane Fireworks sold or offered for sale at retail that do not bear the State Fire Marshal label of registration and firing instructions; 4. Safe and Sane Fireworks sold or offered for sale at retail that are in unsealed packages or containers that do not bear the State Fire Marshal label of registration and firing instructions; and 5. Fireworks still possessed by a person who has just thrown any ignited fireworks at a person or group of persons. B. The City may charge any person, firm, or corporation, whose fireworks are seized pursuant to this Section or the State Fireworks Law, an amount which is sufficient to cover the cost of transporting, storing, and handling the seized fireworks. If the City or a court determines that a person's, firm's, or corporation's fireworks are illegally or erroneously seized, or if legal proceedings do not result in a conviction for violation of any provision of the Lodi Municipal Code or State Fireworks Law, any funds collected pursuant to this Section or the State Fireworks Law shall be refunded, or if charged but unpaid, canceled. 9.13.160 Administrative penalties—Appeals. A. This Chapter authorizes the imposition of administrative fines on any person or responsible 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 citizens of the City of Lodi. 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 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 California Health and Safety Code Section 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 Section 53069.4, Health and Safety Code Section 12557, and the police power of the City of Lodi. B. The issuance of citations imposing administrative fines may be performed at the discretion of the officials of the City of Lodi; and the issuance of a citation to any person or responsible person constitutes but one remedy of the city to redress violations of this Chapter by any person or responsible 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 Chapter by any person or responsible person, which this city may otherwise pursue. C. The imposition of fines related to "Dangerous Fireworks" under this Chapter shall be limited to persons or responsible person(s) who possess, sell, use and/or display, or the seizure of, twenty-five pounds or less (gross weight) of such Dangerous Fireworks. 11 D. Fines collected pursuant to this Chapter related to "Dangerous Fireworks" shall not be subject to Health and Safety Code Section 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 of California, the city shall hold in trust two hundred fifty dollars or twenty-five 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." E. 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 Chapter 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 real property for all violations of this Chapter existing on their real property. Each individual use, display, and/or possession shall constitute a separate violation and each shall be subject to a separate administrative fine. 9.13.170 Issuance of Administrative Citation—Contents. A. 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(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. B. Each administrative Citation shall contain the following information: 1. The name, mailing address, date of birth, CDL number (if available), and home or business telephone number of the responsible person charged with any violation of this Chapter; 2. The address or description of the location of the violation; 3. The date or dates on which the person violated this Chapter; 4. The Section or Sections of this Chapter that were violated; 5. A description of the violation(s); 6. The amount of the administrative fine for each violation, the procedure in place to pay the fines, and any late fee and interest charge(s), 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; 7 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); 8. The names, addresses, and telephone numbers of any witnesses to the violation(s); 9. 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 12 at the time of its issuance. The failure or refusal of a Citee to sign a citation or provide the information required on the 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 this Chapter; 10. Any other information deemed necessary by the Director for enforcement or collection purposes. 9.13.175 Third -party Administrative Citations. A. Whenever one or more private persons observe a violation of this Chapter of the Lodi Municipal Code, they may request that an administrative citation be issued to a responsible person by a CEO. The private persons will be required to sign an affidavit under penalty of perjury verifying that they personally observed a violation of this Code, and may be required to testify at an administrative hearing as provided in this Chapter of the Lodi Municipal Code if the administrative citation is appealed. Failure of the private persons to testify at an administrative hearing if required by the department prosecuting the violation on behalf of the private persons may result in a dismissal of the administrative citation. The CEO shall have the discretionary authority to issue an administrative Citation to a responsible person where, on the basis of an affidavit and any other available evidence, a violation of this Chapter of the Lodi Municipal Code has occurred. B. Each third -party administrative citation shall contain: 1. The date of the violation; 2. The address or a definite description of the location where the violation occurred; 3. The section of this Code violated and a description of the violation; 4. The amount of the fine for the Code violation; 5. A description of the fine payment process, including a description of the time within which and the place to which the fine must be paid; 6. An order prohibiting the continuation or repeated occurrence of the Code violation described in the administrative citation; A description of the administrative citation review process, including the time within which the administrative citation may be contested and the place from which a request for hearing form to contest the administrative citation may be obtained; 8. The name, signature and department issuing the citation on behalf of the private persons. C. Each third -party administrative citation shall be accompanied by an affidavit from the private persons setting forth a description of the violation as observed by the private persons signed under penalty of perjury. 9.13.180 Administrative Fines. A. Each person or responsible person who violates any provision of this Chapter 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: 13 Number of offense in 1 year period First Amount of Administrative Penalty $1,000.00 Late Charge Total Amount of Penalty plus Late Charge $250.00 $1,250.00 Second Third $2,000.00 $3,000.00 $500.00 $2,500.00 $1,000.00 $4,000.00 B. Each person or responsible person who uses "Safe and Sane Fireworks" on or at dates, times, and/or locations other than those permitted by the ordinance codified in this Chapter shall be subject to the imposition and payment of an administrative fine or fines as provided below: Number of offense in 1 year period First Amount of Late Charge Administrative Penalty Second Third $250.00 $500.00 $750.00 $75.00 $150.00 $300.00 Total Amount of Penalty plus Late Charge $325.00 $650.00 $1,050.00 C. In the case of a violation of any of the provisions listed above, the administrative fine(s) shall be due and payable within thirty 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 Section 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 twelve-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. D. All administrative fines and any late charges and interest 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 this Chapter 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. E. Upon confirmation of the citation or when the citation is deemed confirmed, all unpaid administrative fines, late fees, and/or interest 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 interest. F. 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(s) of a violation of this Chapter. 9.13.190 Right to an Administrative Hearing. A. Any Citee may contest the violation(s), or that he or she is a responsible person, by filing a request for an administrative hearing on a city -approved form with the Lodi Fire Chief's office within thirty calendar days from the issuance date of a citation. If the Fire Chief does not receive 14 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. B. No fees shall be charged for the filing of a request for a hearing. C. Citees must 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 if the citation is overturned. D. A request for a hearing shall contain the following: 1. The citation number; 2. The name, address, telephone number, and any facsimile numbers and e-mail addresses of each person or responsible person contesting the citation; 3. A statement of the reason(s) why a citation is being contested; 4. The date and signature of the Citee(s). E. The city will notify all persons or responsible person(s) who file 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. F. The hearing will be conducted within sixty calendar days of the date a timely and complete request is received by the Fire Chief's office. G. 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. 9.13.200 Administrative Hearing—Procedures. A. 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. B. Administrative hearings are informal, and formal rules of evidence and discovery do not apply. Photographs of seized fireworks shall be admissible evidence of the violation. The city bears the burden of proof to establish a violation and responsibility therefore by a preponderance of evidence. The citation is prima facie evidence of the violation, however, the CEO who issued the citation is required to attend or participate at the hearing. The Citee(s) and CEO, if present, shall have an opportunity to present evidence and witnesses and to cross- examine witnesses. C. 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 15 attend or does not submit a written declaration in a timely manner, he or she 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. D. 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. 9.13.210 Hearing Decision—Right of Appeal. A. 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 therefore. B. The Hearing Officer shall serve Citee(s) 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. C. The decisions of the Hearing Officer may be appealed by the Citee to the City Council within thirty calendar days after the date of service of the decision. Each decision shall contain a statement advising the Citee of this appeal right and the procedure for its exercise. D. If a Hearing Officer's decision is not appealed in a timely manner, the decision shall be deemed confirmed. E. If a responsible person prevails on appeal, the city shall reimburse his or her fine deposit within thirty calendar days of the City Council's decision on the appeal. 9.13.220 Financial Reporting. On or before September 1 of any year authorized pursuant to a permit, the permittee shall submit to the City Clerk a financial statement by the treasurer or financial officer of the permittee setting forth the total gross receipts from the fireworks stand operated by the permittee; all expenses incurred and paid in connection with the purchase of fireworks and the sale thereof; and the most recent report filed by the permittee to the State Board of Equalization. The filing of such statement shall be a condition precedent to the granting of any subsequent permit under this Chapter. 9.13.230 Provisions Supplementary. The provisions of this Chapter are supplementary to the provisions of the Fire Code of the City of Lodi. In case of a direct conflict between the provisions of the Fire Code of the city, and the provisions of this Chapter, the provisions of this Chapter shall prevail. Except with respect to such direct conflict, the provisions of the Fire Code of City of Lodi shall remain in full force and effect. Section 3. No Mandatory Duty of Care. This ordinance is not intended to and shall not be construed or given effect in a manner which imposes upon the City, or any officer or employee thereof, a mandatory duty of care towards persons or property within the City or outside of the City so as to provide a basis of civil liability for damages, except as otherwise imposed by law. Section 4. Severability. If any provision of this ordinance or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the ordinance which can be given effect without the invalid provision or application. To this end, the provisions of this ordinance are severable. The City Council 16 hereby declares that it would have adopted this ordinance irrespective of the invalidity of any particular portion thereof. Section 5. All ordinances and parts of ordinances in conflict herewith are repealed insofar as such conflict may exist. Section 6. Effective Date and Publication. This Ordinance shall take effect thirty (30) days after its adoption. In lieu of publication of the full text of the ordinance within fifteen (15) days after its passage, a summary of the ordinance may be published at least five (5) days prior to and fifteen (15) days after adoption by the City Council, and a certified copy shall be posted in the office of the City Clerk pursuant to Government Code Section 36933(c)(1). Approved this day of , 2017 DOUG KUEHNE Attest: Mayor JENNIFER M. FERRAIOLO City Clerk State of California County of San Joaquin, ss. I, Jennifer M. Ferraiolo, City Clerk of the City of Lodi, do hereby certify that Ordinance No. was introduced at a regular meeting of the City Council of the City of Lodi held May 3, 2017, and was thereafter passed, adopted, and ordered to print at a regular meeting of said Council held , 2017, by the following vote: AYES: COUNCIL MEMBERS — NOES: COUNCIL MEMBERS — ABSENT: COUNCIL MEMBERS — ABSTAIN: COUNCIL MEMBERS — I further certify that Ordinance No. was approved and signed by the Mayor on the date of its passage and the same has been published pursuant to law. Approved as to Form: JOHN P. FUKASAWA City Attorney 17 JENNIFER M. FERRAIOLO City Clerk ORDINANCE NO. AN ORDINANCE OF THE LODI CITY COUNCIL AMENDING LODI MUNICIPAL CODE TITLE 9 – PUBLIC PEACE, MORALS AND WELFARE, SECTION 9.12.010 AND REPEALING AND RE- ENACTING CHAPTER 9.13 IN ITS ENTIRETY BE IT ORDAINED BY THE LODI CITY COUNCIL AS FOLLOWS: Section 1. Lodi Municipal Code Title 9 - Public Peace, Morals and Welfare, Section 9.12.010 - Discharge of Weapons and Fireworks -Fires - is hereby amended and shall read as follows: 9.12.010 Discharge of Weapons and Fireworks—Fires. A. Any person who does any of the following without first obtaining a special permit therefore, in writing, from the Chief of Police, which permit shall designate the time and place of such firing or discharging, is guilty of a misdemeanor: 1. Fires or discharges any pistol, gun, rifle, firearm, cannon anvil loaded with powder, bow, airgun or sling, or projects any other dangerous missile within the city. B. Except as provided in Chapter 9.13 of this Code, any person who does any of the following without first obtaining a special permit therefore, in writing, from the Fire Chief, which permit shall designate the time and place of such firing or discharging, is guilty of a misdemeanor: 1. Possesses, dDischarges, or explodes any firecrackers, firerockets, roman candles, chasers, or other fireworks of any nature or kind; or Makes any bonfire of any nature or kind, or who makes any bonfire or burns any hay, straw, rubbish, shavings, or other combustible materials within the city limits. C. The provisions of this Section do not prohibit any person from shooting destructive animals within or upon his own enclosure, nor prohibit the establishment and maintenance of shooting galleries, in accordance with the ordinances of the city. Section 2. Lodi Municipal Code Title 9 - Public Peace, Morals and Welfare, Chapter 9.13 - Sale of Fireworks, is hereby repealed and reenacted in its entirety, and shall read as follows: 9.13.010 Definitions. The following words and phrases, as used in this Chapter, are defined as follows: A. "Citee" means any person or responsible person served with an administrative Citation charging him or her as a responsible person for violation of this Chapter. 1 B. "Citation" means an administrative citation Issued pursuant to this Chapter to remedy a violation. C. "City Manager" means the City Manager of the City of Lodi and/or designee or designees. D. "Code" means the Lodi Municipal Code. E. "Code Enforcement Officer" (CEO) means any Lodi firefighter or Lodi Police Officer and those Parks and Recreation employee's designated to have citation powers by the Parks and Recreation Director. "Dangerous Fireworks" mean Dangerous Fireworks as set forth in California State Fireworks Law (Sections 12505 and 12561 of the California Health and Safety Code and the relevant Sections of Title 19, Code of Regulations, Subchapter 6), as hereinafter may be amended from time to time, which are hereby incorporated by reference. "Director" means the City Manager and/or designee or designees. "Fire Chief" means the Fire Chief of the City of Lodi or other City Manager designee or designees. "Fireworks Task Force Costs" means those employee salary, overtime and benefit costs, disposal costs, clean-up costs, and operations costs incurred by the Lodi police, fire, and parks and recreation departments to operate a task force to enforce the provisions of this Chapter between June 28 and July 7 of each calendar year. Fireworks Task Force Costs shall not exceed twenty thousand dollars in the first year after the effective date of the ordinance from which this Chapter is derived, adjusted by the Consumer Price Index, San Francisco, All Consumers, annually thereafter. J. "Fireworks Wholesaler" means any person who sells fireworks to other wholesalers or retailers for resale; or any person, other than an importer, exporter, or manufacturer, who purchases fireworks from a manufacturer, importer or exporter for resale to a retailer or any other person for resale. K. "Hearing Officer" means the person appointed by the City Manager to serve as the Hearing Officer for administrative hearings under this Chapter. L. "Issuance" or "Issued" means 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 Article III (commencing with Section 415.10) of Chapter 4 of Title 5 of Part 2 of the Code of Civil Procedures; or 2. Mailing of administrative fine Citation to the Citee by certified mail with return receipt to the address shown on the county's latest equalized property taxes assessment rolls; or 2 3. By personally serving the responsible person 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 pre -paid, a copy to the recipient at the address where the copy was left; or In the event the Responsible person party cannot be served by First Class Mail, postage pre -paid, 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 pre -paid, to the responsible person party in violation at the address of the property where the violation exists. "Lodi City Clerk" or "City Clerk" means the Lodi City Clerk and/or designee or designees. "Nonprofit Organization" means: (1) any nonprofit association, charity, church, corporation, club, or society organized primarily for veteran, patriotic, welfare, civic, benevolent, betterment, youth activities, or charitable purposes and has obtained a nonprofit status with either the California Franchise Tax Board or the Internal Revenue Service; or (2) a group which is an integral part of a recognized nonprofit national organization having such tax exempt status; or (3) an organization affiliated with and officially recognized by an elementary, junior high school, high school, school district, and/or college that serves, in whole or in part, the residents of Lodi. To qualify as a "nonprofit" under in this definition, the entity must have a principal and permanent meeting place within the city limits of the City of Lodi. "Person" 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 Chapter occurred. P. "Principal and Permanent Meeting Place" means and includes, but is not limited to, a permanent structure, playing field, geographic area, or service population which resides in or is located within the city limits of the City of Lodi. Q. "Residents of the City" or "City Residents" means and includes owners of businesses and/or property in the city limits as well as occupants of residential dwellings within the city limits of the City of Lodi. "Responsible Person" means 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. There is a rebuttable presumption that the record owner of real property, as shown on the county's latest equalized property 3 taxes assessment rolls, and a lessee of real property 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 eighteen 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") mean Safe and Sane Fireworks as defined in California State Fireworks Law (Sections 12529 and 12562 of the Health and Safety Code and the relevant Sections of Title 19, Code of Regulations, Subchapter 6), as hereinafter may be amended from time to time, which are hereby incorporated by reference. T. "Violation" or "Violates" refers to any violation of any provision of this Chapter. 9.13.020 Sale and Discharge—Time limit. A. Subject to the provisions of this Chapter, the State Fireworks Law, Sections 12500 through 12728 1-2746 of the California Health and Safety Code, and any regulations promulgated thereunder, Safe and Sane Fireworks, as defined herein, may be sold within the city limits of the City of Lodi only during the period beginning at 12:00 noon on June 28 and shall not continue after 9:00 p.m. on July 4 of the same year. The sale of fireworks shall be permitted only from 12:00 noon to 9:00 p.m. on June 28; from 9:00 a.m. to 9:00 p.m. daily from June 29 through July 4. No fireworks classified as "Dangerous Fireworks" by Section 12505 of the California Health and Safety Code may be sold within the city limits of the City of Lodi. B. Subject to the provisions of this Chapter, the State Fireworks Law. Sections 12500 through 12728 of the California Health and Safety Code, and any regulations promulgated thereunder, Safe and Sane Fireworks may be discharged within the city limits of the City of Lodi only on July 4, from 9:00 a.m. to 11:00 p.m. This subsection shall take effect on January 1, 2018. C. Subject to the provisions of this Chapter, the State Fireworks Law, Sections 12500 through 12728 42-7-26 of the California Health and Safety Code, and any regulations promulgated thereunder, Safe and Sane Fireworks, as defined herein, may be discharged within the city limits of the City of Lodi only during the period beginning at 12:00 noon to 11:00 p.m. on June 28 and from 9:00 a.m. to 11:00 p.m., daily, from June 29 through July 4. This subsection shall expire and be of no further force or effect after midnight, December 31, 2017. D. No fireworks classified as "Dangerous Fireworks" by Section 12505 of the California Health and Safety Code may be discharged within the city limits of the City of Lodi. — The use or discharge of fireworks within fifty feet of any fireworks sales stand is prohibited. 4 9.13.030 Permit Required—Issuance—Limitations. A. Except as provided in this Chapter, it is unlawful to offer for sale or sell at retail "Safe and Sane Fireworks" without having first applied for and been issued a permit therefor, in the manner set forth in this Chapter. B. Permits for the sale of Safe and Sane Fireworks shall be issued only to nonprofit organizations, and such fireworks shall be sold only at the outdoor sales stands, as more specifically set forth hereinafter. C. Permits shall be issued by lottery. The lottery shall take place at a time, place, and manner determined by the Fire Chief in accordance with administrative rules and procedures adopted by the Fire Chief. Each applicant shall receive one lot. D. No more than six such permits shall be issued and be outstanding at any time. E. No nonprofit organization may receive more than one permit for the sale of fireworks during any one calendar year. Only one application per school will be allowed. If an organization is affiliated with a recognized educational institution as defined in Section 9.13.010 of this Chapter, but maintains a separate tax-exempt status with the Internal Revenue Service or the California Franchise Tax Board, said nonprofit organization shall be allowed a separate application. F. No nonprofit organization may be awarded a permit for more than two consecutive calendar years. G. Any applicant that has had a fireworks sales permit suspended or revoked within the prior three calendar years shall be eligible for a fireworks sales permit only upon demonstrating to the Fire Chiefs reasonable satisfaction that suitable arrangements have been made to preclude future violations. 9.13.040 Permit Application—Regulations—Limitations. A. All applications for a permit to sell fireworks may be filed with the Lodi Fire Department between the first business day in March and the last business day in March of each year. All applications shall be accompanied by an application fee in an amount as may be established from time to time by resolution of the City Council. B. All permit applications must be properly completed and submitted to the Lodi fire department before the close of business on the last business day in March. Permit applications that are incomplete or filed late shall not be processed. C. All permit applications shall be made in writing on a form supplied by the Lodi Fire Department. A completed permit application shall be accompanied by an assurance that, if the applicant is issued a permit, the applicant shall, before receipt of such permit, deliver to the city the following items and/or information: 1. Proper identification and signature of the permit applicant; 2. The proposed location of the fireworks sales stand; 5 3. A detailed description of the fireworks proposed to be sold; The written consent of the owner of record and/or lessor in control of the property upon which the proposed sales stand will be located; 5. The fireworks distributor's business name, address, telephone number, and person that is the point of contact; A site plan, with dimensions indicating the location of all existing buildings, structures, driveways, flammable materials, and rights of way where the proposed sales stand will be located; 7 Proof of a temporary sales tax permit from the State Board of Equalization or proof of application; 8. A certificate of insurance evidencing current and valid commercial general liability, property damage, and product liability insurance of not less than two million dollars combined single limit, from a company authorized to transact the business of insurance in the State of California. The insurance company must have an AM Best Rating of not less than A-; 9. The certificate of insurance must provide an appropriate additional insured endorsement to the insurance policy or policies, which names the City of Lodi and its officers, employees, agents, and volunteers as additional insured's under the policy or policies; 10. Proof of a State Fire Marshal retail fireworks license; 11. Such other information and documentation that the Fire Chief in his or her reasonable discretion may require; 12. Temporary Event Permit. Each Applicant Shall Also File A Temporary Event Permit Application as required by Lodi Municipal Code Section 17.78.050 with the Community Development Department; 13. Reimbursement Agreement. An Agreement in a form to be obtained from the City Attorney's Office between the City of Lodi and the permittee's fireworks distributor, requiring the distributor to indemnify the city for that distributor's pro rata share of all Fireworks Task Force Costs incurred during the period that fireworks may be sold under this Chapter. D. Each applicant shall file with the city, at the time of filing the permit application, a nonrefundable application fee as may be established from time to time by resolution of the City Council. If selected in the lottery as a permittee, a letter of credit, certificate of deposit, or a surety bond made payable to the city in the amount as set by resolution of the City Council to assure compliance with the provisions of this Chapter shall be filed with the city. Such deposit certificate or bond shall be refundable upon compliance with the provisions and requirements of this Chapter, including but not limited to, the removal of the sales stand, cleaning of the site, and full passage of the city's final site inspection. 6 E. The Fire Chief is authorized to promulgate administrative regulations and procedures necessary for the successful and effective implementation of this Chapter including rules and procedures governing the submission of applications for permits to sell Safe and Sane Fireworks, inspections of fireworks stands, operation of fireworks stands, and such regulations relating to the sale of Safe and Sane Fireworks as may be necessary for the protection of life and property. Said administrative regulations and procedures shall be set forth in writing and are subject to prior approval by the City Attorney. 9.13.050 Prerequisites to Issuance of Permit. Permits to sell fireworks shall only be issued to applicants that meet all of the following qualifications: A. The applicant must be a nonprofit organization that conducts its activities primarily for the benefit of the city and its residents. B. The applicant must have been organized and established in the city limits of the City of Lodi for a minimum of one year continuously preceding the filing of application for the permit, and must have a bona fide membership of at least ten members who are residents of the City. 9.13.060 Permit applications—Notice of Acceptance or Rejection—Selection Procedure—Fee. A. The Fire Chief shall notify all applicants by the third Monday in April regarding the results of the lottery and the applicants that have been granted permits, and said successful lottery/prospective permittees will have until the close of business on the third Monday in May to submit their final paperwork required in subsection C of Section 9.13.040. If any successful lottery/prospective permittee fails to submit its paperwork by the deadline, in any given year, the Fire Chief shall give notice on the third Wednesday in May to the requisite number of substitute lottery applicants that they have until the second Monday in June to submit paperwork as required by subsection C of Section 9.13.040. B. All applicants that have been granted permits shall, prior to Issuance of the permit, pay a permit fee in an amount established from time to time by resolution of the City Council. The permit fee is intended to cover the cost of the first inspection of the fireworks stand. Any necessary subsequent inspections shall be subject to a re -inspection fee in an amount as established from time to time by resolution of the City Council. The letter of credit, certificate of deposit, or a surety bond made payable to the city and provided by the applicant pursuant to subsection D of Section 9.13.040 shall be held by the city to be available to cover the cost of removal of the fireworks sales stand and site clean-up in accordance with subsection P of Section 9.13.090. C. Each applicant that has been granted a permit shall have no Tess than two members of its sales staff attend an operator safety seminar approved and supervised by the Lodi Fire Department and provided by a licensed firework's wholesaler or the City of Lodi Fire Department. 9.13.070 Suspension of permit—Appeal procedure. A. The Fire Chief may suspend immediately and without notice or hearing the permit of any permittee that violates any California statute, rule, regulation, or this Code while operating or preparing to operate a fireworks sales stand during or immediately preceding any period of sale. 7 If the Fire Chief reasonably believes that a violation has occurred during, immediately preceding, or immediately following the authorized period of sale, he or she shall have power to prohibit the permittee from acquiring a fireworks sales permit in the future. B. Any decision of the Fire Chief made pursuant to this Chapter shall be subject to review by the City Manager. When the decision being appealed affects the current sale period, such review shall be held at the earliest possible time that the permittee, City Manager and the Fire Chief can schedule a hearing for such review. For decisions that do not affect the current sales period, the hearing shall be held within ten city business days after the request for hearing, which request must be made in writing within ten calendar days after notice of the decision being appealed. The City Manager may set aside the decision, modify it, or revoke in his or her reasonable discretion. The decision of the City Manager shall be final. 9.13.080 Fireworks Sales Stand—Operation. A. It is unlawful for the permittee to allow any person other than individuals who are members and/or volunteers of the permitted nonprofit organization, or the spouses or adult children of such members, to sell or otherwise participate in the sale of fireworks. B. It is unlawful for the permittee to pay any consideration to any person for selling or otherwise participating in the sale of fireworks. C. Each sales stand must have a minimum of one adult (twenty-one years of age or older) in attendance and in charge thereof while fireworks are stored therein. D. No person may sleep in or remain in the stand after close of business. E. All unsold fireworks must be removed from the stand during non -sale hours and stored in a centrally located locked metal container or other secure and fire safe structure during non - sale periods. Each fireworks distributor shall provide a single storage location and container for storage of its stand's fireworks. The container shall be approved by the Fire Chief and located in an M1 or M2 zoned location approved by the Community Development Director and the Fire Chief. F. Each sales stand must have on duty at all times during the sales period, at least one salesperson (twenty-one years of age or older) who attended the City of Lodi Fire Department operator safety seminar, required pursuant to subsection C of Section 9.13.060. G. The sale of fireworks shall conform to restrictions of Section 9.13.020. H. All unsold fireworks and accompanying litter shall be removed from the sales location by 10:00 p.m. on July 4 and the sales stand shall be removed by 12:00 noon on July 9 of each year. Permittees shall require all persons who appear to be under the age of thirty years to provide proof of age and shall make no sales of fireworks to persons younger than sixteen (16) eighteen years of age. 8 9.13.090 Fireworks sales stands—Requirements. All retail sales of "Safe and Sane Fireworks" shall be made only from within a temporary fireworks sales stand, and sales from any other building or structure is hereby prohibited. Fireworks sales stands are subject to the following requirements: A. Fireworks sales stands shall be put in place by the permittee no earlier than 8:00 a.m. on June 24 of each year. B. No fireworks sales stand shall be located within twenty-five feet of any other building or structure, within five feet of any curb line, or within one hundred feet of any gasoline pump. C. The stand must be located on a developed lot with paved parking areas and driveway approaches and the stand itself must be located on a paved surface. D. The stand may not occupy parking spaces required for the primary use of the site, or interfere with required access, circulation, fire lanes or fire hydrants. E. No fireworks stand shall be located within one hundred feet of any building used as a school, day care, hospital, place of detention, public garage, or place of assembly that can accommodate three hundred or more occupants, or within one hundred feet of a residential zone. Fireworks stands shall only be permitted in a district zoned CS, C2, CM, M1, or M2 or the PD designation equivalents. F. A minimum of twenty feet of separation shall be provided between the fireworks sales stand and any vehicle(s), with the exception of loading or unloading the permittee's supply vehicle. G. No weeds or other combustible materials are permitted within twenty-five feet of the fireworks sales stand. H. All fireworks sales stands shall be preapproved by the Fire Chief prior to opening for business. All general use fifteen amp and twenty amp receptacles shall have listed ground -fault circuit -interrupter protection and electrical installations shall be approved by the city building inspector and/or the Fire Department prior to the stand opening for business. J. All fireworks sales stands shall be built and maintained in accordance with the safety requirements of the city prior to opening for business. K. No generators shall be allowed within twenty-five feet of any fireworks sales stand. L. Smoking and the consumption of alcoholic beverages shall not be allowed within fifty feet of any fireworks sales stand and "no smoking" signs shall be displayed on and in the fireworks sales stand. M. Permittees shall place no signs in the public right-of-way. 9 N. Each fireworks sales stand shall be provided with two, two -and -one-half gallon pressurized water type fire extinguishers, or two 2A1OBC dry chemical/powder type fire extinguishers, in good working order, and easily accessible for use in case of fire. 0. The fireworks sales stand shall be removed from the temporary location by 12:00 p.m. on July 9 of each year, all unsold fireworks by 10:00 p.m. July 4, and any accompanying litter shall be cleared from the location by 5:00 p.m. on July 5. If the permittee does not remove the stand and/or clean the sales site as required by this Chapter, the city may do so, or cause the same to be done, and the reasonable cost thereof shall be charged against the permittee, and his or her deposit, certificate, or surety. In addition, any permittee found to be in violation of this Section shall be subject to an administrative penalty imposed in accordance with Section 9.13.160. P. The permit to sell fireworks shall be displayed in a prominent place in the fireworks sales stand and shall at all times be visible to members of the public. Q. Each permittee under this Chapter shall display a poster measuring eighteen inches by thirty-two inches that shall be posted at the point of sale of the fireworks and hand out a flyer with each sale to notify purchasers of all applicable restrictions established by this Chapter. All information shall be provided in English and Spanish. The permittee shall provide the posters and fliers, which shall be approved by the Fire Chief prior to the permittee opening for business. R. Fireworks Stands shall be either twenty-four or thirty-two feet long by eight feet wide. Twenty -four -foot stands shall have two exits and a maximum occupancy of six people. Thirty- two -foot stands shall have two exits and a maximum occupancy of eight people. 9.13.100 Fee imposed Upon Permittees. A. The City of Lodi will require each applicant receiving a permit to pay a fee, as described in Section 1(e)(3) of Article XIII C of the California Constitution, and the City of Lodi will require each permittee to pay their pro rata portion of the costs that the City of Lodi has incurred related to the following: 1. Processing and issuing permits; 2. Inspection of fireworks stands; 3. Public education and awareness campaign regarding the safe and responsible use of Safe and Sane Fireworks and the dangers and risks posed by the use of illegal fireworks; and 4. With respect to the sale and use of Safe and Sane Fireworks, including extra personnel time, and cleanup of fireworks trash and debris. "Extra personnel time" shall be defined as employee or contracted employee time that the City of Lodi would not otherwise incur but for the sale and use of Safe and Sane Fireworks in the City of Lodi and is the amount to be paid by the Fireworks Wholesaler pursuant to subsection 9.13.040(C)(13). B. No permittee may offer for sale or sell Safe and Sane Fireworks, unless and until the permittee has paid to the city the fee imposed by this Section. 10 C. The fees established pursuant to this Section are not intended to generate excess revenue for the city, but rather to attempt to offset costs. 9.13.110 Temporary sales tax permit—Requirements. A. Each permittee must obtain a temporary sales tax permit from the State Board of Equalization. B. The temporary sales tax permit shall be displayed in a prominent place in the fireworks sales stand and at all times be visible to members of the public. 9.13.120 Possession of dangerous fireworks. California Health and Safety Code Section 12677 provides that it is unlawful for any person to possess Dangerous Fireworks without holding a valid permit and the criminal penalty for such violations is set forth in California Health and Safety Code Section 12700. In addition. or in the alternative. any person who possesses a gross weight, including packaging, of less than 25 pounds of unaltered Dangerous Fireworks, as defined in Section 12505 of the California Health and Safety Code. may be subject to an administrative fine as set forth in this Chapter. 9.13.130 Permissible Locations for Discharge. The discharge of fireworks in the city shall be limited to private property except as otherwise provided in this Chapter. No fireworks shall be discharged on public, or semipublic properties, or in a public street or right-of-way except in those areas approved in writing by the Fire Chief. For purposes of this Chapter, "semipublic" is defined as private property generally open for use by the public but not owned or maintained by a governmental body. Such property includes without limitation church property, shopping center property, and other property generally used by patrons of a commercial or private business establishment, but not including private streets in residential areas. 9.13.140 Prohibitions on discharge. A. It is unlawful for any person or responsible person to ignite, explode, project, or otherwise fire or use any fireworks, or permit the ignition, explosion, or projection thereof, upon, over, or onto the property of another without his or her consent, or to ignite, explode, project, or otherwise fire or make use of, any fireworks within ten feet of any residential dwelling or other structure used as a place of habitation by human beings. B. Except as provided in subsection C of this Section, it is unlawful for individuals under sixteen (16) eighteen years of age to sell, purchase, possess, use, or discharge "Safe and Sane Fireworks." C. It is unlawful for any person having the care, custody, or control of a minor under the age of eighteen (1 Fj years to permit such minor to discharge, explode, fire, or set off any dangerous, illegal fireworks, at any time.; car -It is unlawful for any person having the care, custody, or control of a minor under the age of sixteen (16) years 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 eighteen years of age and during the hours and on the days permitted by this chapter. 9.13.150 Seizure of fireworks Reserved. 11 A. Pursuant to California Health and Safety Code Section 12500 et seq., the Fire Chief, his or her authorized representatives, and law enforcement officers may seize any fireworks described in California Health and Safety Code Section 12722, including, but not limited to: 1. Dangerous Fireworks, including fireworks kits, used. possessed, stored. manufactured, or transported by a person who does not possess a valid permit; 2. Safe and Sane Fireworks stored in violation of the conditions required by a permit; 3. Safe and Sane Fireworks sold or offered for sale at retail that do not bear the State Fire Marshal label of re. is i tration and firing instructions; 4. Safe and Sane Fireworks sold or offered for sale at retail that are in unsealed packages or containers that do not bear the State Fire Marshal label of registration and firing instructions; and 5. Fireworks still possessed by a person who has just thrown any ignited fireworks at a person or group of persons. B. The City may charge any person, firm, or corporation, whose fireworks are seized pursuant to this Section or the State Fireworks Law, an amount which is sufficient to cover the cost of transporting. storing, and handling the seized fireworks. If the City or a court determines that a person's, firm's, or corporation's fireworks are illegally or erroneously seized, or if legal proceedings do not result in a conviction for violation of any provision of the Lodi Municipal Code or State Fireworks Law, any funds collected pursuant to this Section or the State Fireworks Law shall be refunded, or if charged but unpaid, canceled. 9.13.160 Administrative penalties—Appeals. A. This Chapter authorizes the imposition of administrative fines on any person or responsible 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 citizens of the City of Lodi. 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 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 California Health and Safety Code Section 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 Section 53069.4, Health and Safety Code Section 12557, and the police power of the City of Lodi. B. The issuance of citations imposing administrative fines may be performed at the discretion of the officials of the City of Lodi; and the issuance of a citation to any person or responsible person constitutes but one remedy of the city to redress violations of this Chapter by any person or responsible 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 Chapter by any person or responsible person, which this city may otherwise pursue. 12 C. The imposition of fines related to "Dangerous Fireworks" under this Chapter shall be limited to persons or responsible person(s) who possess, sell, use and/or display, or the seizure of, twenty-five pounds or less (gross weight) of such Dangerous Fireworks. D. Fines collected pursuant to this Chapter related to "Dangerous Fireworks" shall not be subject to Health and Safety Code Section 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 of California, the city shall hold in trust two hundred fifty dollars or twenty-five 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." E. 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 Chapter 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 real property for all violations of this Chapter existing on their real property. Each individual use, display, and/or possession shall constitute a separate violation and each shall be subject to a separate administrative fine. 9.13.170 Issuance of Administrative Citation—Contents. A. 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(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. B. Each administrative Citation shall contain the following information - 1. The name, mailing address, date of birth, CDL number (if available), and home or business telephone number of the responsible person charged with any violation of this Chapter; 2. The address or description of the location of the violation; 3. The date or dates on which the person violated this Chapter; 4. The Section or Sections of this Chapter that were violated; 5. A description of the violation(s); 6. The amount of the administrative fine for each violation, the procedure in place to pay the fines, and any late fee and interest charge(s), 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; 13 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); 8. The names, addresses, and telephone numbers of any witnesses to the violation(s); 9. 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 failure or refusal of a Citee to sign a citation or provide the information required on the 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 this Chapter; 10. Any other information deemed necessary by the Director for enforcement or collection purposes. 9.13.175 Third -party Administrative Citations. A. Whenever one or more private persons observe a violation of this Chapter of the Lodi Municipal Code, they may request that an administrative citation be issued to a responsible person by a CEO. The private persons will be required to sign an affidavit under penalty of perjury verifying that they personally observed a violation of this Code. and may be required to testify at an administrative hearing as provided in this Chapter of the Lodi Municipal Code if the administrative citation is appealed. Failure of the private persons to testify at an administrative hearing if required by the department prosecuting the violation on behalf of the private persons may result in a dismissal of the administrative citation. The CEO shall have the discretionary authority to issue an administrative Citation to a responsible person where, on the basis of an affidavit and any other available evidence. a violation of this Chapter of the Lodi Municipal Code has occurred. Each third -party administrative citation shall contain: 1. The date of the violation; 2. The address or a definite description of the location where the violation occurred; 3. The section of this Code violated and a description of the violation: 4. The amount of the fine for the Code violation: 5. A description of the fine payment process. includina a description of the time within which and the place to which the fine must be paid: 6. An order prohibiting the continuation or repeated occurrence of the Code violation described in the administrative citation; A description of the administrative citation review process, including the time within which the administrative citation may be contested and the place from which a request for hearing form to contest the administrative citation may be obtained: 14 8. The name. signature and department issuing the citation on behalf of the private persons. C. Each third -party administrative citation shall be accompanied by an affidavit from the private persons setting forth a description of the violation as observed by the private persons signed under penalty of perjury. 9.13.180 Administrative fines. A. Each person or responsible person who violates any provision of this Chapter 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: Number of offense in 1 year period Amount of Administrative Penalty Late Charge Total Amount of Penalty plus Late Charge First $1,000.00 $250.00 $1,250.00 Second $2,000.00 $500.00 $2,500.00 Third $3,000.00 $1,000.00 $4,000.00 B. Each person or responsible person who uses "Safe and Sane Fireworks" on or at dates, times, and/or locations other than those permitted by the ordinance codified in this Chapter shall be subject to the imposition and payment of an administrative fine or fines as provided below: Number of offense in 1 year period Amount of Administrative Penalty Late Charge Total Amount of Penalty plus Late Charge First $250.00 $75.00 $325.00 Second $500.00 I $150.00 $650.00 Third $750.00 I $300.00 $1,050.00 C. In the case of a violation of any of the provisions listed above, the administrative fine(s) shall be.due and payable within thirty 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 Section 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 twelve-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. D. All administrative fines and any late charges and interest 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 this Chapter 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 15 compliance with the provisions of the Code so violated including the Issuance of additional citations and/or criminal prosecution. E. Upon confirmation of the citation or when the citation is deemed confirmed, all unpaid administrative fines, late fees, and/or interest 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 interest. F. 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(s) of a violation of this Chapter. 9.13.190 Right to an Administrative Hearing. A. Any Citee may contest the violation(s), or that he or she is a responsible person, by filing a request for an administrative hearing on a city -approved form with the Lodi Fire Chiefs office within thirty calendar days from the issuance date of a citation. If the Fire Chief 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. B. No fees shall be charged for the filing of a request for a hearing. C. Citees must 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 if the citation is overturned. D. A request for a hearing shall contain the following: 1. The citation number; 2. The name, address, telephone number, and any facsimile numbers and e-mail addresses of each person or responsible person contesting the citation; 3. A statement of the reason(s) why a citation is being contested; 4. The date and signature of the Citee(s). E. The city will notify all persons or responsible person(s) who file 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. F. The hearing will be conducted within sixty calendar days of the date a timely and complete request is received by the Fire Chiefs office. 16 G. 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. 9.13.200 Administrative Hearing—Procedures. A. 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. B. Administrative hearings are informal, and formal rules of evidence and discovery do not apply. Photographs of seized fireworks shall be admissible evidence of the violation. The city bears the burden of proof to establish a violation and responsibility therefore by a preponderance of evidence. The citation is prima facie evidence of the violation, however, the CEO who issued the citation is required to attend or participate at the hearing. The Citee(s) and CEO, if present, shall have an opportunity to present evidence and witnesses and to cross- examine witnesses. C. 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 or she 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. D. 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. 9.13.210 Hearing Decision—Right of Appeal. A. 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 therefore. B. The Hearing Officer shall serve Citee(s) 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. C. The decisions of the Hearing Officer may be appealed by the Citee to the City Council within thirty calendar days after the date of service of the decision. Each decision shall contain a statement advising the Citee of this appeal right and the procedure for its exercise. D. If a Hearing Officer's decision is not appealed in a timely manner, the decision shall be deemed confirmed. E. If a responsible person prevails on appeal, the city shall reimburse his or her fine deposit within thirty calendar days of the City Council's decision on the appeal. 17 9.13.220 Financial Reporting. On or before September 1 of any year authorized pursuant to a permit, the permittee shall submit to the City Clerk a financial statement by the treasurer or financial officer of the permittee setting forth the total gross receipts from the fireworks stand operated by the permittee; all expenses incurred and paid in connection with the purchase of fireworks and the sale thereof; and the most recent report filed by the permittee to the State Board of Equalization. The filing of such statement shall be a condition precedent to the granting of any subsequent permit under this Chapter. 9.13.230 Provisions Supplementary. The provisions of this Chapter are supplementary to the provisions of the Fire Code of the City of Lodi. In case of a direct conflict between the provisions of the Fire Code of the city, and the provisions of this Chapter, the provisions of this Chapter shall prevail. Except with respect to such direct conflict, the provisions of the Fire Code of City of Lodi shall remain in full force and effect. Section 3. No Mandatory Duty of Care. This ordinance is not intended to and shall not be construed or given effect in a manner which imposes upon the City, or any officer or employee thereof, a mandatory duty of care towards persons or property within the City or outside of the City so as to provide a basis of civil liability for damages, except as otherwise imposed by law. Section 4. Severability. If any provision of this ordinance or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the ordinance which can be given effect without the invalid provision or application. To this end, the provisions of this ordinance are severable. The City Council hereby declares that it would have adopted this ordinance irrespective of the invalidity of any particular portion thereof. Section 5. All ordinances and parts of ordinances in conflict herewith are repealed insofar as such conflict may exist. Section 6. Effective Date and Publication. This Ordinance shall take effect thirty (30) days after its adoption. In lieu of publication of the full text of the ordinance within fifteen (15) days after its passage, a summary of the ordinance may be published at least five (5) days prior to and fifteen (15) days after adoption by the City Council, and a certified copy shall be posted in the office of the City Clerk pursuant to Government Code Section 36933(c)(1). Approved this day of , 2017 DOUG KUEHNE Attest: Mayor JENNIFER M. FERRAIOLO City Clerk 18 State of California County of San Joaquin, ss. I, Jennifer M. Ferraiolo, City Clerk of the City of Lodi, do hereby certify that Ordinance No. was introduced at a regular meeting of the City Council of the City of Lodi held May 3, 2017, and was thereafter passed, adopted, and ordered to print at a regular meeting of said Council held 2017, by the following vote: AYES: COUNCIL MEMBERS — NOES: COUNCIL MEMBERS — ABSENT: COUNCIL MEMBERS — ABSTAIN. COUNCIL MEMBERS — I further certify that Ordinance No. was approved and signed by the Mayor on the date of its passage and the same has been published pursuant to law. Approved as to Form: JOHN P. FUKASAWA City Attorney 19 JENNIFER M. FERRAIOLO City Clerk Jennifer Ferraiolo From: Jennif Sent: Monc To: Denni Cc: City C Subject: RE: Lc COMMUNICATIONS r- 3 lice Magdich; Larry Rooney; Tod Patterson dnesday, May 3, 2017 / AGENDA ITEM: Ord. I-3 Public Relations E' Public Affairs Thank you for your email. It was received by the City Council and forwarded to the City Manager's office and Fire and Police Departments for information, response, and/or handling. In addition, your correspondence will be provided as a Blue Sheet item at Wednesday's Council meeting. Jennifer M. Ferraiolo, MMC City Clerk P.O. Box 3006 Lodi, CA 95241-1910 (209) 333-6702 (209) 333-6807 FAX From: Dennis Revell[mailto:DCR@revellcommunications.com] Sent: Friday, April 28, 2017 11:56 AM To: Jennifer Ferraiolo Subject: FW: Lodi City Council Meeting / Wednesday, May 3, 2017 / AGENDA ITEM: Ord. I-3 Importance: High From: Dennis Revell Sent: Friday, April 28, 2017 11:35 AM To: 'dkuehne@lodi.gov' <dkuehne@lodi.gov>; 'anakanishi@lodi.gov' <anakanishi@lodi.gov>; 'mchandler@Iodi.gov' <mchandler@Iodi.gov>; 'bjohnson@lodi.gov' <hiohnson@lodi.gov>; 'jmounce@lodi.gov' <imounce@lodi.gov>; 'slake@lodi.gov' <slake@lodi.gov>; 'jmerrailo@lodi.gov' <jmerraiio(Iodi.gov>; 'jmagdich@lodi.gov' <imagdich@lodi.gov>; 'tpatterson@lodipd.org' <tpatterson[]a. lodird.org>; 'Irooney@lodi.gov' <lroonev@lodi.gov>; 'bdoell@lodi.gov' <bdoell@Iodigov> Cc: Don Pascarella <PascarellaD@tntfireworks.com>; 'Louis Linney' <LinneyL@tntfireworks.com>; dcr 327@hotmail.com Subject: Lodi City Council Meeting / Wednesday, May 3, 2017 / AGENDA ITEM: Ord. I-3 Importance: High April 28, 2017 To: The Honorable Doug Kuehne and Members of the Lodi City Council 305 West Pine Street 1 via email Lodi, CA 95240 RE: Our Client: American Promotional Events, Inc. (TNT Fireworks) SUBJECT: Lodi City Council Meeting Wednesday, May 3, 2017 AGENDA ITEM: Ord. I-3 Introduce Ordinance Amending Lodi Municipal Code Title 9 — Public Peace, Morals and Welfare — by Amending Section 9.12.100, "Discharge of Weapons and Fireworks — Fires," and by Repealing and Re - Enacting Chapter 9.13, "Sale of Fireworks," in its Entirety (CA) Ladies and Gentleman: Three of you served on the City Council in 2011 when I assisted then City Manager Brad Bartlam and then City Attorney, now City Manager, Steve Schwabauer in drafting the portions of the Lodi Municipal Code permitting the sale and use of State Fire Marshal -Approved Fireworks in the City of Lodi. Revell Communications has had the distinct honor and privilege of serving as the public relations/public affairs representative for American Promotional Events, Inc., the state's leading wholesale distributor of State Fire Marshal -Approved Fireworks (TNT Fireworks) since 1989. In addition, we assist TNT and its almost 2,600 local nonprofit organizations retail partners with most local government issues, including, but not limited to, analysis of local government costs, surcharges, regulatory fees, enforcement efforts, local fire and injury data and other legislative and administrative matters regarding fireworks. We have also either written or assisted over 175 cities and counties in California in either drafting or revising their fireworks and/or code enforcement ordinances. We have been the prime proponent and contributing author of legislation to assist both the State of California and local jurisdictions in their battle with illegal fireworks, such as SB 839, which as of January 1, 2008 created the ability for local jurisdictions to use administrative fine enforcement procedures with respect to the use and possession of under 25 pounds of illegal fireworks. Following the City Council Study Session in January of 2017 on the problems associated with illegal fireworks in Lodi, I spoke with the Lodi Fire Marshal/Battalion Chief Brad Doell and offered to and subsequently sent him a wealth of information and ordinances that we had either collected or participated in the drafting that contained a number of solutions including "Social Host", "Third -Party Citations", and "Response Costs" recovery. We offered to meet with City staff and provide any assistance that we could as Lodi deliberates and formulates that solution which will work best for its residents. In reviewing the proposed ordinance that will be before the City Council next Wednesday, it would appear that a number of components that we suggested have been included. The purpose of this correspondence is to discuss with you some pieces of the solution to the illegal fireworks puzzle that you may not be aware of and would like to consider. In addition, there are some components of the proposed ordinance that will have a significant negative financial impact on Lodi nonprofit organizations, without contributing to the success of your ordinance's target, eliminating the use and abuse occurring in Lodi with illegal fireworks. Not knowing the breathe or depth of knowledge within the City Council and staff on many of these subjects since I last appeared before you some years ago, I thought it would be helpful to provide some factual background behind the current statewide proliferation of illegal fireworks. WHY ARE THE ILLEGAL FIREWORKS SO BAD EACH YEAR Regrettably, we have seen each successive year go down as the worst year in California 4th of July history for the volume of and problems caused by illegal fireworks. The State of California has primary, and in some instances 2 exclusive, jurisdiction for dealing with this problem. Instead of dealing with it as they should, and at a minimum containing the problem; they have abdicated their responsibility and made local government not only the "first line of defense" ... they have made them the "only line of defense" against illegal fireworks. How has this happened? Here are just a few insights. ■ Fireworks come into the United States through four Western ports, three of which are in California (Oakland, Long Beach and Los Angeles). They leave those ports in two ways, by rail or by truck. Both our client and the U.S. Department of Transportation have argued to the California State Fire Marshal for some time that there are operations that pick up product at those ports that is illegal in California, but is legal elsewhere, that supposedly is to be trucked to a legal location outside of California. Instead, these products are drop shipped to locations here in California. In recent years, there have been major seizures of illegal fireworks, particularly in Southern California warehouses, that ranged from 15 to 25 tons each which were drop shipments from the ports. • There is no border integrity or inspections for illegal fireworks like there used to be. As a result, there are both hordes of individual criminal entrepreneurs as well as large commercial operations smuggling these dangerous illegal fireworks into this state without fear of being caught or suffering any criminal consequences. One of those operations openly brags that it makes somewhere in the neighborhood of $5 million each year from illegal fireworks sales in Southern California alone. • To my knowledge, over the last two decades there have not been any state or federal prosecutions of any individual or entity for engaging in or facilitating the importation and/or sale of dangerous illegal fireworks in California. • Despite its mandatory duty to pick up illegal fireworks within 90 days of when a local jurisdiction had seized them, the State Fire Marshal, until the last two years, was not picking up any of those warehoused illegal fireworks and were telling local jurisdictions it was their responsibility to dispose of them at a cost of as much as $23.00 per pound. As a result, in part because of our advocacy on the issue on behalf of local governments across the state, we were able to convince the Brown Administration and the State Legislature to appropriate additional money in 2014 and 2015 to take care of the backlog of seized illegal fireworks across the state as well as those that were seized in 2015 and 2016. However, the Brown Administration is currently unwilling to allocate any new General Fund monies to deal with this admittedly General Fund responsibility and as a consequence there is currently no money in the State Fire Marshal Fund to cover the pickup, transportation and disposal of any illegal fireworks seized by Lodi. DISCUSSION OF OPTIONS/SOLUTIONS PRESENTED TO THE COUNCIL In 2011 the City of Lodi properly included an administrative fine/citation process for those in possession of or using 25 pounds or less of illegal fireworks. Here is a little bit of background on why the administrative citation process is critical to Lodi's future success of tackling the illegal fireworks problem it faces. A. Administrative Citations Until about nine years ago, local jurisdictions in most instances were relegated to criminally citing those in possession or using illegal fireworks utilizing provisions of the California Health and Safety Code. As a result of the state legislation (SB 839) which was signed into law on October 12, 2007 and became effective January 1, 2008, local jurisdictions are now allowed to utilize an Administrative Citation and Fine Process for possession and/or use of less than 25 pounds of illegal fireworks. Attached hereto at Exhibit A please find a fact sheet on SB 839. The following slide sequence will explain why in 2011 we recommend that Lodi adopt an Administrative Citation process for the sale and use of under 25 pound of illegal fireworks. 3 B. It overview '. Criminal Citaati4nI • A. rcw! [var• & rttlrii sl �lkkiil t4•° I'+,ta!lrknlicd ttt Nr,aed+a of t_ltitter • t.°trnrl ttt•arrrto • .1nry'Tcai1 • I'F,KI 0.turk6.ti•rn 6:4.10(1144 ,0 • INFrit.tion/Mia tionrs6iaa •?Y • Fitt e•.w int 1+.r St.itnnt • tld•kcrtttIel FI•at:arntt901.. 4. Administrative Citation • Nr, Arrrtal t �•ll nlilttle'al ttl Nr1•hi?[tk't: l.lt t:NPn:ar t$rrl Itcttlt1trrl • Arltriirtta6lrattla•• n• krinr • I•carrkn>_Officer 61.6?11..••.t1 to City Council ; in114. Srat>.*tirrr G:11ar1 • Nortinnrrnt R. ons • Htltr.e €ap 1n $1,01.10 I r f..:npral 1.:1W 1: thr:7 • Itrt• it ntl rtnt •I1 Ow I',vid.r1tao • tally Cothr.1xIrtii �r� ,r•tr.r• Vort'•.• • • Criminal vs. Administrative {• ('iin 3rtni: "116-,a rrrl n Iteanttranhh Don or trtt,t rlra.t I.4.v y;rtt•ot./sh#r,1t,ulr•rl;,••nvtrnnn tbnl lPip loaf}•'ts WU' €lu•.•,.gtnrr•uu �ti yr r,�t per.`#1 kv�"96mom,!n!] •..0101. rh•.Ftrt • Arlrrri+ktslratlites "Irrcgrrnalrrnrtt•r•raflike hwt411414•e-" • N-ie••u_aprcofr+kjuel.•i•+•tithen=Ntrawct•,raiuk1rilMort, likely'Nut n.rt inn rlm fart atrr, r[r• ir•r"ur •eek, taxp am v • I..:..,furl r•�!.n al •• .tnn.:u • lci,a: �sl.s6r.F Post ;nnvl C_tiol.rp Criminal vs• Administrative +.•Criminal ('.alit: Administrative; (''n:� • 1nr1•au•t1,rr ilNii..Mrrsr.+nt.r • 1,111,111•.• ria,,+rrr • C'ow k puilct•rti 'the tint • 1.'r••ur nd akt ptlil • No.••,trrn,.•l t„-ord • .kancnttsuatti,•• MK. segs t•, Sa C'et� er11,2er5 fir v • ;1N{x1.rl to Srtlxriui 0.tal4 Fireworks Social Host Ordinance .Ata * 71 _ ` remess Criminal vs. Administrative '•'•• Criminal Citation The crime or violation utast lac committed in the presence e r f the cntorcemmt oiiiver •? Administrative (a%II Citation • 'rite virll:atican lac+e•s not have to he committed in the presence of enforcement oilteer Criminal vsr.Adnri.nistrative •'Criminal Case ':''Administrative C'asI • Court Provides Staff and •Iwig(� • lifstrict Attorney trr4J4tc'utes • City Provides 'Witnesses • City Provides Stall and !fearing Officer • Staff Prosceutc.• • City 1'r widca i4 itttcr4 � : and Evidence Due to the increasingly high use of illegal fireworks on or about the 4th of July and New Year's Eve each year, and cities across the State being unsuccessful in holding users and possessors fully accountable for the possession and/or use of these dangerous illegal fireworks; an increasing number of cities, counties and fire districts are adopting "Fireworks Social Host Ordinances" in order to make owners, renters, Ieasees, and/or those that have possession of a residence or other property ("Responsible Person"), responsible for dangerous illegal fireworks possession and use on that property. Law enforcement and fire authorities in a jurisdiction only need to verify on what property the fireworks were launched or used. Once that is verified, the jurisdiction may pursue the "Responsible Person" for that jurisdiction's fine. In most instances, in general law cities, it is the maximum fine of $1,000. I am sure that both Lodi Fire and Police representatives will tell you that while the discharge of illegal fireworks can be tied to a particular residence or property, it is often difficult to tell who at the residence or property discharged the illegal fireworks. The owner or tenant of the premises is often in the best position to control and knows or should know 4 of the possession, manufacture, storage, sale, handling and use of illegal fireworks on his/her residence or commercial premises. Many of these jurisdictions who have adopted social hosts ordinances have concluded that those persons who have possession or control of private property where dangerous illegal fireworks are being stored, sold or used, have failed to ensure that this activity is not taking place on their property. In addition, many police and fire agencies are reluctant to send their personnel into an environment, particularly in the case of only one or two officers on the scene, that would pose a serious threat to that officer's safety given the participants in the illegal activity and the violator's level of intoxication or other impaired behavior. Thus, the ability to cite the "Responsible Person" without subjecting that officer to potential threat or harm, is a preferable, safer response to handling the situation. Attached hereto at Exhibit B are a sampling of how various jurisdictions have codified a Fireworks Social Host Ordinance. It ranges from the most simple of them for the City of Ripon, to more sophisticated and detailed ordinances for Kern County, City of Salinas and Santa Clara County. (There are currently close to two dozen jurisdictions with these types of ordinances.) While in the "Definitions" section of the proposed ordinance before the City Council there is a definition for "Responsible Person" as if there were a social host liability provision in the ordinance,...there is no corresponding "Social Host" provision in the ordinance. At no other point throughout the ordinance is the term "Responsible Person" used in a liability or penalty portion of the ordinance. As you can see from attached Exhibit B all of the social host ordinances similarly define "Responsible Person", as Lodi has, but then have liability and penalty ordinance provisions in a social host context. We would respectfully suggest that this ordinance needs further refinement and the inclusion of a "Social Host" liability section and fully support and encourage the City Council to have a social host enforcement provision in its fireworks ordinance. TNT Fireworks and the undersigned would strongly encourage the Lodi City Council to consider adopting a Fireworks Social Host Ordinance and, like the vast majority of those who have Fireworks Social Host Ordinances, include a provision in its ordinance that in addition to the Administrative Fine levied against the illegal fireworks violator, the City of Lodi could recover "Response Costs". "Response Costs" could be defined to mean those reasonable and necessary costs directly incurred by the City for a response to a complaint of discharging illegal fireworks prohibited under that Lodi Municipal Code and should include the cost of providing police, fire and/or other emergency response services at the scene to include, but not limited to: 1. Salary and benefits of the Law Enforcement and/or Fire and/or Emergency Personnel for the full amount of time responding to, remaining at, or otherwise dealing with such illegal fireworks, and the administrative costs attributable to such responses; 2. The cost of any medical treatment to or for any Law Enforcement personnel injured while responding to, remaining at, or leaving the scene; and 3. The cost of repairing any City equipment or property damaged and the cost of the use of any such equipment used in responding to, remaining at, or leaving the scene; and 4. The disposal costs of any illegal fireworks seized from said violator that are not covered by the State of California. C. Enhanced Enforcement Since entering the California market over 28 years ago, TNT Fireworks has distinguished itself throughout the State and more particularly, in each of the 296 California communities it serves, as a company that is committed to safety, quality and service, as well as supporting public safety agencies' efforts in those communities to combat the sale and use of illegal fireworks. Recognizing that local jurisdictions have not only become the first line of defense but the only line of defense against illegal fireworks, in 2016 TNT Fireworks embarked on an effort to develop a dual platform smartphone mobile application that would allow residents, in individual cities/counties, to take pictures of the sale and/or use of illegal 5 fireworks in that jurisdiction and email these photos, with their GPS coordinates, to that jurisdiction so that it can either issue a warning or an administrative fine. This new, unique smartphone app, appropriately named, "Nail 'em", places the power of illegal fireworks enforcement in the palm of your residents' hands. It allows them to easily report the possession, sale and use of illegal fireworks in your community along with photos and GPS locations. When your jurisdiction fully participates with "Nail'em" the citizen's complaint is automatically routed to the correct law enforcement and/or fire personnel. During the beta testing of this app in 2016, the consumer usage of it in participating communities throughout the State varied from extremely specific reports to the brief ones like "Illegal fireworks being shot off at the corner of 1St and L Streets". While the consumers' and public safety departments' response to the "Nail'em" app was extremely positive, we do feel that the beta testing indicated that we could make two significant improvements to it. Namely the following: 1. In order to make sure that we are able to gain all of the necessary information from the app user when making his/her report to your jurisdiction, we thought it might be better to re -format a portion of the app so that we make specific, sequential queries of the reporting person, as opposed to relying on them to know the specific details that they would need to include in their report; and 2. By gaining the information that we hope from #1 above, we could then provide fire and law enforcement departments more specific detail upon which they can act and/or issue administrative fines, citations and/or warnings. We queried each of the police and fire departments that either participated in the initial beta test of the app or expressed interest in the app after it launched. We shared with them an app that had been employed by the Miami - Dade Police and Security Officers and their counterpart transit agency in the City of Los Angeles to see if the formatting employed by these apps presented a more organized and consistent form of reporting. The resounding feedback was in the affirmative. Attached hereto at Exhibit C please find copies of a Power Point Presentation that I would be happy to present to members of the City Council and/or City Staff either on a one-on-one basis or during the City Council Meeting, which shows the new reformatted "Nail'em" app on an Android platform. It should be noted that in many participating jurisdictions, as was discussed above regarding a suggested a Social Host Ordinance, police officers in those jurisdictions found the "Nail'em" app particularly useful to be able to cite individuals where it was too dangerous for a single officer to intervene. The "Nail'em" app allowed them to take the necessary photographic documentary evidence and capture the GPS coordinates of the activities, file a report and issue a citation subsequently either via a Social Host Ordinance provision or where they were actually able to identify the individuals participating in the activity, cite the individual(s). The "Nail'em" app is linked to a web server Record Management System (RMS) hosted by the app developer, App - Order. Each report comes into the RMS and generates an email to the jurisdiction where the incident/activity took place and multiple persons can receive that email notification directly on their smartphone while out in the field. This "Field Officer Application" is provided free of charge by TNT and App -Order for each jurisdiction with multiple copies available. The "Field Officer Application" provides: 1. Immediate access to the report; 2. They can use their map function on their smartphone to obtain directions to the reported location; 3. Input their findings once they reach the location; and 4. Automatically send a template response to the "reporting person" advising them that the City has responded to their "Nail'em" report. This is all can be done from the field with a smartphone. It is important that any of the responding personnel to a complaint be a "user" so they can immediately enter information into the report without having to go back to their headquarters to give the information to someone else to enter into the RMS. 6 In TNT's continuing effort to protect Lodi citizens and your community from illegal fireworks, TNT is willing to provide you this vehicle, free of charge, through which you can solicit and gain the public's help. No matter how skilled your police and fire departments are, they will benefit from your citizens' help in identifying illegal fireworks violators. The "Nail'em" app allows your citizens to assist you by being your eyes and ears out there in the community. D. Days of Use of State -Approved Fireworks The most problematic portion of the proposed ordinance before the City Council this Wednesday, are the amendments to Section 9.13.020 "Sale and Discharge -Time limit" Subsection B and C. In Subsection C it sunsets the current ordinance provision in the City of Lodi effective December 31, 2017, which allows the use of State Fire Marshal -Approved Fireworks from 12:00 noon to 11:00 p.m. on June 28 and from 9:00 a.m. to 11:00 p.m., daily, from June 29 through July 4. It instead, in Subsection B, states that State Fire Marshal -Approved Fireworks may only be used on July 4, from 9:00 a.m. to 11:00 p.m.. There are practical, rationale reasons why State law has the current time period of noon on June 28 through noon on July 6 for a sales period, and why virtually 98% of the local ordinances in the 296 communities that allow State -Approved Fireworks have a concurrent use period of noon on June 28 through late evening of July 4th on each year. The rationale is that obviously the day of the week that the 4th of July falls upon changes every year. As a consequence, because of work and travel schedules, individuals and their families may choose to celebrate amongst themselves or with their neighbors on nights other than the 4th of July because it is more convenient and easier for them to do so. In addition, most experts would agree that allowing people to celebrate over a series of days, as opposed to aggregating it all on one day causes less impact on the community and is easier to manage and control. As I am sure you will hear from the Lodi nonprofit organizations who rely on the sale of State -Approved Fireworks as a primary fundraiser, the elimination of these permissible days of use will substantially impact their revenues, without having any discernible impact on what the City is attempting to target in this ordinance revision,...illegal fireworks use. As is indicated in slides in Section B of this correspondence, absent the third -party citation process in the proposed ordinance and/or a Fireworks Social Host ordinance provision and the existing administrative citation process, a public safety officer (fire, police or code enforcement) has to see an individual exercising dominion and control over the product in order to arrest them. Absent a social host provision, which is not in the proposed ordinance, the City can do nothing about fireworks use occurring out of someone's backyard that they cannot witness who it is that is exercising dominion and control over the illegal item. Most importantly, in an attempt to make it easier to enforce the law against illegal fireworks violators, this proposed ordinance has compounded the problem by now putting law enforcement, fire personnel and code enforcement officers in the position of having to cite Lodi residents who are mistakenly using State -Approved Fireworks from June 28 through July 4, when they naturally presume it should be legal since they were allowed to buy State -Approved Fireworks on those days. The practical impact of this move will be that City personnel will spend more time dealing with law abiding citizens who were ignorant of a restriction that really has no common sense correlation to what everyone is trying to target,... illegal fireworks. We would respectfully suggest that the City Council consider amending this proposed ordinance to do the following; 1. Utilizing language similar to virtually any of the other jurisdiction's ordinances attached at Exhibit B, insert "Social Host" liability and penalty sections in this ordinance. 2. Hold parents and juvenile's jointly and severably liable for their use and possession of illegal fireworks as well as "Social Host" liability. 3. Fully participate in the free "Nail'em" smartphone app program and have the maximum number of police officers, fire personnel, and code enforcement officers on duty during the evening hours over the period of June 28th through July 4th to receive "Nail'em" field reports when Lodi residents file them. 7 Very Truly Yours, REVELL COMMUNICATIONS Dennis C. Revell President'CEO 4. Strike the new proposed language at Section 9.13.020 subsection B and instead retain the language in subsection C allowing the use of State Fire Marshal -Approved Fireworks beginning at noon to 11:00 p.m. on June 28th and from 9:00 a.m. to 11:00 p.m. daily from June 29th through July 4th TNT Fireworks and Revell Communications stand ready and willing to assist the City of Lodi with drafting the requisite amendments to this proposed ordinance, assisting with the promotion, use and effective prosecution of illegal fireworks violators utilizing the "Nail'em" smartphone app as well as participating in an enhanced public education effort as it relates to the dangers and safety risk posed by the use of illegal fireworks. I look forward to appearing before the City Council on Wednesday evening to discuss any or all of the above as well as would appreciate the opportunity to meet with Councilmembers and City staff one-on-one in an effort to tailor an ordinance that works best for the City of Lodi. CC: Lodi City Councilmembers Steve Schwabauer, City Manager Jennifer M. Merraiolo, City Clerk Janice Magich, City Attorney Tod Patterson, Police Chief Larry Rooney, Fire Chief Brad Doell, Fire Marshal 8 Jennifer Ferraiolo 1=3 From: Jennifer Ferraiolo Sent: Tuesday, May 02, 2017 2:51 PM To: Mike Parson Cc: City Council; Steve Schwabauer; Janice Magdich; Larry Rooney; Tod Patterson Subject: RE: Fireworks Thank you for your email. It was received by the City Council and forwarded to the City Manager's office and Fire and Police Departments for information, response, and/or handling. In addition, your correspondence will be provided as a Blue Sheet item at Wednesday's Council meeting. Jennifer M. Ferraiolo, MMC City Clerk P.O. Box 3006 Lodi, CA 95241-1910 (209) 333-6702 (209) 333-6807 FAX Original Message From: Mike Parson[mailto:mikeparson88@yahoo.corn] Sent: Tuesday, May 02, 2017 2:49 PM To: City Council Subject: Fireworks We all know the problem is not the fireworks I can get from the stand so why go there. The problems are the illegal fireworks. They are already illegal and we can't seem to stop them so why target the legal safe and sane ones. I doubt if these cause any of the many calls about bottle rockets cherry bombs and the ones that rival Lodi lakes. Sent from my iPhone Background The problem? - - - Illegal fireworks Why are illegal fireworks so bad? Local government has become not only the "first line of defense" it has have become the "only line of defense" Community expressed Jan 17th City Council concerns about illegal directed staff to look fireworks into targeting illegal fireworks and possibly reducing the time for use of state -approved fireworks City Fire Department On Jan 27th we requested our emailed a sampling assistance of ordinances, Nail' em info, and offered further help What is Before the Council tonight? 1) Limit use of state -approved fireworks to 4th of July only 2) Lower age of sale to 16 years old 3) Adopt a third -party administrative complaint process 4) In addition to fine, City may collect disposal costs What is not included? 1) Fireworks Social Host Provision 2) Hold parents jointly and severably liable 3) Participate in free "Nail'ein" reporting app Why is limiting use to one day bad public policy? 1) State -approved fireworks are not the problem illegal fireworks are the problem. 2) The day of the week that the 4th of July falls on changes every year. 3) Allowing people to celebrate over a series of days causes less impact. 4) The practical impact of this restriction will be that City Police will spend time dealing with law-abiding citizens using state -approved fireworks rather than focusing on illegal fireworks. 5) If banning the use of state -approved fireworks permitted better enforcement of illegal fireworks, jurisdictions across this state would be free of illegal fireworks use at least 358 days a year. We all know that's not the case! We would respectfully request that the Council 1) Strike proposed Section 9.13.20 B in its entirety and continue to allow the current use on June 28 through July 4 to remain in effect. 2) Not accept the proposed change in Section 9.13.40 B and leave current age of sale at 18. 3) Insert and adopt a definition for "Social Host" and a "Social Host Liability" provision in the ordinance. (see handout) Pf ieo1 b j 8 02ve,11 3 Definition (i) "Social host" shall mean any of the following: (1) Any owner of private property as listed on the most recent assessment roll; (2) Any person who has the right to use, possess, or occupy a public or private property under a lease, permit, license, rental agreement, or contract; (3) Any person who hosts, organizes, supervises, officiates, conducts, or accepts responsibility for a gathering on public or private property. (4) In the event that a juvenile organizes, supervises, officiates, conducts, and/or accepts responsibility for a gathering on public or private property at which there is the possession, manufacture, storage, sale, handling and/or use of illegal fireworks occurs, then the parents or guardians of that juvenile will be jointly and severably liable and deemed a "social host" for purposes of this section. Social Host Liability Section Social Host Liability (a) Except as may be permitted by state law or local ordinance, it is unlawful for any individual to permit, allow, aid and/or abet any discharge of illegal fireworks (including a public display), if such a person either knows or reasonable should know that an individual is discharging illegal fireworks on his or her residential or other private property. (b) Any person who permits the discharge of illegal fireworks from their premises shall be rebuttably presumed to have actual or constructive knowledge that individuals have discharged illegal fireworks if such person is present at their premises at the time the discharge of illegal fireworks occurs. (c) A person shall not be in violation of this Chapter if he or she seeks the assistance of the Lodi Police Department, Fire Department or other law enforcement agency to remove any person who refuses to abide by the responsible person's performance of their duties imposed by this Chapter of the Lodi Municipal Code, or to terminate a gathering or social event because the social host has been unable to prevent the discharge of illegal fireworks despite having taken all reasonable steps to do so, so long as such request is made before any person makes a complaint about the discharge of illegal fireworks at said premises. (d) Possession, manufacture, storage, sale, ignition, use and/or discharge by minors: Any person having the care, custody, or control of a minor shall be strictly liable for any unlawful possession, manufacture, storage, sale, ignition, use, and/or discharge of dangerous fireworks by said minor. (e) Any social host shall be strictly liable for any unlawful possession, manufacture, storage, sale, ignition, use and/or discharge of any dangerous fireworks at his or her property or gathering; except that (1) No owner of private property shall be liable under this subsection for a violation of on that property if that owner can demonstrate that at the time of such violation he or she (i) had rented leased the property to another, (ii) was not present, and (iii) had no prior knowledge of the violation. (2) 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 occurring in the common areas of such property. (f) Nothing in this subsection shall limit the liability of any social host for a violation of this article by the social host. The remedies set forth in this Chapter are in addition to all other legal and equitable remedies, administrative, criminal or civil, that may be pursued by the City to address violations of this Chapter, including, as an alternative to the issuance of an administrative fine pursuant to this Section, and in his or her sole discretion, the City Attorney may criminally prosecute a violation of this Chapter. (g) There is no requirement that the City provide advance notice to the social host(s) prior to issuing an administrative citation. Social host(s) shall be deemed to know the law as is the common standard for code violations. Furthermore, illegal fireworks violations create an immediate danger to the public health, safety and welfare for which immediate correction is required. Additionally, illegal fireworks violations are non -continuing violations for which it is not possible or practical to provide prior notice and an opportunity to correct. Stockton Modesto Craigslist Illegal Fireworks Ads 2017 SAMPLE {00027902.DOCX; 1} hap,:L/iiia C3.bi ).�_.�'� i ; l Corgi c)t/()()c • contact name: Allen • call or text: u (209) 765-9652 • reply by email: 1.5dn8-60817:34aeu&saie.craigslist.Ojj • copy and paste into your email: t5dn8-6081754668@sale.craigslist.org '54068 10..m1 Neon Fusion 5" Canister Shells by Red Apple Fireworks for sale (Modesto,Turlock, Merced) hide this posting ima 'e 1 of 9 condition: new Selling couple of 2017 Neon Fusion 5" Canister Shells, they come in a 6p with mortar included, also selling 1 Sampler packs of large Canister Shells. Has 3 different variety of shells, Triumph, UV, Pagoda, top of the line. Comes with 24 Canister Shells and 4 fiber glass tubes. Serious buyers only, no ballers, no trades, no hold them for me shit, no I'll get them next week shit, serious buyers only! Don't waste my time Also have some G force Candles Neon Fusion 5"- $50 ea 24 Sampler pack- $100 48 shot 500g cakes- $50ea G force Candles 6p $30 • do NOT contact me with unsolicited services or offers post id: 6081754668 posted: 22 days ago updted: about 18 hours ago May 1, 2017 {00027902.DOCX; 1} _;I '. ti) '6111 ;,t 78,,:).hir�il • reply by email: jhdzz-61O3267829(asale,craigslist.®ra • copy and paste into your email: jhdzz-6103267829@sale.craigslist.org fireworks - $2 hide this posting Email your number • do NOT contact me with unsolicited services or offers post id: 6103267829 posted: 7 days ago April 24, 2017 {00027902.DOCX; 1} Bay Area Craigslist Illegal Fireworks Ads 2017 Sample {00027901.DOCX; 1} 1ti reply by email: 6103267829(miale (iaigskt copy and paste into your email: jhdzz-6103267829@sale.craigslistorg fireworks - $2 hide this posting 0 craigslist - Map data 0 1.• Email your number • do NOT contact me with unsolicited services or offers post id: 6103267829 posted: 7 days ago April 24, 2017 {00027901.DOCX; 1} 1:: I I id0) Orange County Craigslist Illegal Fireworks Ads 2017 SAMPLE {00027900.DOCX; 1} , pra ngecou n t:v Fai4SliSL.Org/ 1'0i" 104780288, Iltin I • contact name: Roger • text: rd (714) 232-1386 • reply by email: gp99d-O I (1478(1288*;a utigslistorg • copy and paste into your email: gp99d-6104780288@sale.craigsl ist.org Fireworks-4Sale - $1 (Stanton) hide this posting image 1 of 2 {00027900.DOCX; 1} condition: new Selling these fireworks for 4th of July. Get your supplies now. Super King- $130 Excalibers- $110 Hit me up. Im willing to negotiate based on how much u buy. a do NOT contact me with unsolicited services or offers post id: 6104780288 posted: 6 days ago updated: about 21 hours ago (May 1, 2017) {00027900.DOCX; 1} orangecounty. era igs oc.g/ for/ (11 72O_4() • contact name: Brian • call or text: 3 (714) 403-5186 • reply by email: • copy and paste into your email: gbrws-6111720401@sale.craigslist.org Fireworks *Get them early before prices go up! ! * - $1 (Orange County) hide this posting image 1 of 4 condition: new 5 INCH XL UV shells 24 shots 4 motors Tiger assortment box/ Panda assortment box XL Roman Candles Current Events cake 30 shots Call/text at 7144035186 • do NOT contact me with unsolicited services or offers post id: 6111720401 posted: about 21 hours ago updated: about 21 hours ago (May 1, 2017) {00027900.DOCX; 1} 1-111-v,i: / ./ 0 ranecot t Fay AA'aigslisLorgi fool 6o9 tiv i_7788 t.htai1 .. reply by email: Acjp-6( )9140788 1_,T(oate.erai:&iiis! . „ i • copy and paste into your email: 2rcjp-6091407881@sale.craigslist.org Fireworks - $100 (Santa Ana) hide this posting image 1 of 2 {00027900.DOCX; 1} 1MYWIWfN NI wy i"AZ La lul I/ MI _ 7- rMLi1:i I, •• COWrf� Vi I.. -t •.MNi f hI T lye • 4 Pu ie[ In i. r1 w•I:n rte.•, L.i� 8K ! • • Fireworks! Bring your family and kids the best fireworks at a very affordable price. Family Packs with many assortment of different kind of fireworks. Check out Panda Box here: https://youtu.be/8KSh44PpBfk Check out Tiger Box here: https://www.youtube.com/watch?v=ym_ZdXph-Bs&feature=share Txt for more info: 7 one 4 3 nine 0 cero 6 two zero • do NOT contact me with unsolicited services or offers post id: 6091407881 posted: 15 days ago updated: 15 days ago (May 16, 2017) {00027900.DOCX; 1} ot aW=, c l i 11t .i:°i'a gSIjs L.0up,/ I 0z, 6091;; '700 5.4t>Iti_ • contact name: Raul ■ text: u (714) 616-9011 • reply by email: nf8u._6091 _,67(934, a e.efai • • copy and paste into your email: mf8xp-6091367695@sale.craigslist.org Fireworks - $60 (Garden grove) hide this posting Have left over fireworks from last year. Don't need them. Didn't even use half the box. $60 or best offer. What's in the picture is what you get. 714-616-9011 ■ do NOT contact me with unsolicited services or offers post id: 6091367695 posted: 15 days ago (April 16, 2017) {00027900.DOCX; 1} Ijitl) • hien 6046:'_ 845. hind contact name: text: u (909) 235-8682 • reply byyemail: st�� i`l _001)4621 M ,+� .ale ,exaie,:li:;i oig • copy and paste into your email: 8wrhg-6064621845@sale.craigslist.org FIREWORKS 111111 - $1 (CHINO) hide this posting image 1 of 4 UP FOR SALE A FLOWER POWER 9 SHOT FINAL WITH REALLY NICE COLOR. https://www.fireworks.com/products/item/flower-power-g ASKING FOR $160 UP FOR SALE A CHARCOAL PALM RACK 9 SHOT FINAL WITH REALLY NICE COLOR https://www.fireworks.com/products/item/500-charcoaI-palm-rack-g-665/ ASKING $160 IF YOU BUYING BOTH WILL BE $300 YOU CAN CLICK ON THE LINK TO CHECK OUT THE VIDEO AND THE REAL PRICE.\\ TXT ME AT 909 -TWO- THREE- 5- 8- SIX- 8- TWO o do NOT contact me with unsolicited services or offers post id: 6064621845 posted: about a month ago updated: 13 days ago April 17, 2017 {00027900.DOCX; 1} htps;i La mwourti„s,' xTaigslist,orgi for/ 607257 • text: 3 (714) 215-3211 • reply by email: mjvdf-.6072571534@sale.craigslist.org • copy and paste into your email: mjvdf-6072571534@sale.craigslist.org Fireworks (Tustin) hide this posting image 1 of 3 11111111 ,(;) craigslist - Map data C., unenSti-c-,,i r[ap condition: new Excalibur Exterminator Alien Fam pk Etc 714 215 3211 • do NOT contact me with unsolicited services or offers post id: 6072571534 posted: 28 days ago April 3, 2017 {00027900.DOCX; 1} (aooale rndp) Los Angeles Illegal Fireworks On Craigslist SAMPLE {00027894.DOCX; 1} htih, ., j1c; t�,ls,+°jai li i_.sfe, jlae/iiaL(1O33b3.!O. 4.hhtnil .• contact name: J e text: (323)667-5911 Fireworks really cheap - $1 (Los Angeles) hide this posting ima e 1 of 1 1 condition: new Family box $85 Excalibur's $90 King pyro big family box $120 Cake's High falutin 49 shots $65 Hit the road jack 49 shots $65 Saturday night special 36 shots $60 Firecracker's brick $20 Sky rockets 144pcs $15 Rpg really loud 6pcs $65 Roman candle 6pcs 10 Ball of fire 190 shot $30 Hit me up if you are really interested don't wait for the last minute when prices go up on June or July hit me up asap selling fast.... do NOT contact me with unsolicited services or offers post id: 6103331034 posted: 7 days ago updated: 28 minutes ago (May 1, 2017) {00027894.DOCX; 1} hittm: //luson.gI€arij gsl Li aciforja ::4i:,:cdoo .MI-0 •• reply by email: rtisittp.112833901(ri..,-.;ale_ci5jim;list,org, .s. webmail links: o &nail o V alto() mail o hittplail, outlook, live mail • copy and paste into your email: itkip-6112833901@sale.craigs I istorg Exculabur fireworks - $100 (21 and over) hide this posting 111■11MMINI1 make / manufacturer: Exculabur model name / number: Exculabur Exculabur Boxes 1 for 150 each donation 2 for 125 each donation 3 our more 100 each donation Also extra shells 6 for 40 donation 3 for 25 donation No Kids No kids No Kids only except donation from adults. • do NOT contact me with unsolicited services or offers post id: 6112833901 posted: about 2 hours ago (May 1, 2017) {00027894. DOCX; 1} o:,a1Ik_n'a N,S1 t 0)13:tn), h • contact name: Camacho • text: (323) 877-2761 • reply by email: loxIN- I 1 200:552(sale.erata:s1 ist,org • copy and paste into your email: ktxbq-6112005520@sale.craigslistorg Fireworks - $100 (Arleta) hide this posting image 2 of 2 Goliaths 500 Gram cakes All American Block Buster Fam Packs Shells of vengeance Excalibur Firecracker bricks Screaming bottle rockets Roman candles Thunder king cakes n much more!!! • do NOT contact me with unsolicited services or offers post id: 6112005520 posted: about 13 hours ago (May 1, 2017) {00027894.DOCX; 1} (Iii10:•..3i,e;�i_ .l'f ll�,i.l_I., ()H.27::139;j4.)_{li.illl • reply by email: mssdti-61 12 75 X9950 .aic c;rxaigsliat.org • copy and paste into your email: mssdv-6 1 1 2753950@sale.craigs I ist.org Fireworks - $1 (Long beach) hide this posting image 1 of 4 IUL condition: new 95 and 120 call for details 5 62 248 3936 • do NOT contact me with unsolicited services or offers post id: 6112753950 posted: about 3 hours ago (May 1, 2017) {00027894.DOCX; 1} / o:,,a • fon' () 1.:121)(Aq(.1A I Lai Fireworks - $20 (Los Angeles) reply by email: 104 copy and paste into your email: znpvm-6104260836@sale.craigslist.org condition: new Selling a bundle of fireworks. (760) 441-7056 -`•• •\ ;" t / •- f 7.„. -, • 'N 1 I ...- o /P :.. ... N.. ---.___ ..— _ _,......7--_--- — ,,..„..-- , --,--z-;----.-'' .0.- 7, i il i • ,, "." i..: • , i .11 I I Firework fireworks cakes family packs • do NOT contact me with unsolicited services or offers post id: 6104260836 posted: 6 days ago updated: 2 days ago (April 29. 2017) {00027894.DOCX; 1} hul s._ 10 2� L1 s.c aiLslisl.orn, lac DE 01 1 Zi.Cib "l bawl • reply by email: zsb8p-61 12676664Asale.eraigslisturg • copy and paste into your email: zsb8p-6112676664@sale.craigslist.org Fireworks - $10 hide this posting ima e 1 of 7 I have Roman candles Bottle rockets Family packs Excalibur shells G force shells Greats deals hmu Text me at(323) 505-8370 ■ do NOT contact me with unsolicited services or offers post id: 6112676664 posted: about 3 hours ago (May 1, 2017) {00027894.DOCX; 1} losail cof.1 craIQsiI,t_oIFL sty. spa bl11 317I0_110nl • text: u (818) 415-0416 • reply by email: zed4-01 12 1 i I (I q;salc .eva!gslist.org'. • copy and paste into your email: zrcqz-6 112731710@sale.craigsl ist.org Fireworks - $1 hide this posting image 1 of 2 1-lmri i1 you need any b All kinds lmk what you're interested in! Txt only available after l Opm weekdays Weekends any time! • do NOT contact me with unsolicited services or offers post id: 6112731710 posted: about 3 hours ago (May 1, 2017) {00027894.DOCX; 1} hCii ; to=.aiu ,ies.c,[r ;!Ist ori ,,t itis ti I2 6i.368.1t'o,,l Fireworks Assortments Cakes and Artillery Shells - $1(West LA) hide this posting reply by email: ki I11 1 12.761 188Aalc,Li_aigslil l.org copy and paste into your email: kvcfn-6112761388@sale.craigslist.org Selling family pack assortments, artillery shells, and cakes of fireworks for Cinco De Mayo and 4th of July. IF the Ad is still up, I still have it. Prices are listed. No delivery. The location is near Venice and Sepulveda. Email your order and phone number. I'll call or text you my location/time. $100 - All American Blockbuster $120 - King of Pyro $40 - Bamboozle (cake) $100 - Shells of Vengeance Prices are Firm. Excalibur, Red Apple, Black Cat, Alien, Phantom, Black Jack, Rockets, Missile, Loud, Buster, Roman Candles, Bees. a do NOT contact me with unsolicited services or offers post id: 6112761388 posted: about 2 hours ago(May 1, 20iistps:µ!E>rit s eiam i r ii= . >t 21:tc . t;6i {00027894.DOCX; 1} https://losancleles.cratolist.org/lac/for/6111190388.html reply by email: ;,.nf 61 1 1 1e,..e •iii list urg copy and paste into your email: 7gsnf-6111190388@sale.craigslist.org Fireworks!!! hide this posting image 1 of 7 I have really good deals on fireworks. Excalibur shells Roman candles Bottle rockets Family assortments G force shells (better than Excalibur ) Text at (323) 505-8370 0 do NOT contact me with unsolicited services or offers post id: 6111190388 posted: a day ago April 30, 2017 {00027894.DOCX; 1} 11111)5: l_lc;szi.il„Lle .<r i s.liS.L;014±111171:011 6 1J09700.28.l tmm 1 • ext: (818)731-1436 • reply by email: l l ply 711' : .crai5list.o, copy and paste into your email: hqzpz-6110970028@sale.craigslist.org Fireworks! hide this posting Fireworks for sale I have Excaliburs price is 100 each. Pick up in palmdale no trades serious buyers only text 8187311436 • do NOT contact me with unsolicited services or offers post id: 6110970028 posted: a day ago (April 30, 2017) {00027894.DOCX; 1} 111i s.c;,1ai tisk_orgik1 /tor°/60_ 3 7i301fi:3.htntl • reply by email: hI v.ezuy9789I0t4;sa,I,_.claii2:+lixt.nrg • copy and paste into your email: hhwp2-6089789163@sale.craigslist.org Family Pack Fireworks - $100 (Los Angeles) hide this posting 1 condition: new Selling a family pack fireworks. Email me if interested. 760-441-7056 fireworks family packs cakes • do NOT contact me with unsolicited services or offers post id: 6089789163 posted: 16 days ago updated: 2 days ago (April 29, 2017) {00027894.DOCX; 1} 1111111,r.� 1t1 IF..,'/it }y?llig_E1S.'.'aigtlisL,ti ;I1at ftrr/(0S7 lIlu)3.1,, • call or text: u (760) 441-7056 • reply by email: 4;019.1i 1091,4,4ilc+.1 • copy and paste into your email: vpnvw-6097471693@sale.craigslist.org Reapers Doom 12 Shot Fireworks - $40 (Los Angeles) hide this posting Selling Reapers Doom 12 shot fireworks. $40 (760) 441-7056 Cake fireworks brick family packs artillery shells • do NOT contact me with unsolicited services or offers post id: 6097471693 posted: 11 days ago updated: 2 days ago (April 29, 2017) {00027894.DOCX; 1} fiLl_ps://14)sangiaics.c[digsiist..org/sgv/14/61028o9(gAlarni • contact name: Manuel • call or text: u (323) 947-6441 Fireworks - $1 (La puente) hide this posting image 1 of 4 LEM Got some fireworks for sale. HMU No cops No low ballers. Delivery is available • do NOT contact me with unsolicited services or offers post id: 6102809644 posted: 7 days ago updated: 2 days ago (April 39, 2017) {00027894.DOCX; 1} • reply by email: 0,00 • webmail links: o o,..ahoo mail oulio,d,, 11,y. null auE inail • copy and paste into your email: pmhvh-6106875972@sale.craigslist.org All American block buster family pack fireworks - $90 (562) hide this posting craigslist - Map data '0 (g9oglc111ip) All American block buster family pack fireworks $90 • do NOT contact me with unsolicited services or offers post id: 6106875972 posted: 4 days ago (April 27, 2017) {00027894.DOCX; 1} ii ij ,1;'1cf.faw2,eics,(Talis1.o . ,_/j jic;� 1.t� ' b641g l�i:ir�l • reply by email: y i ztp. 1053(6419`p)salc,erdalgslist,org • webmail links: o €1111ai1, o 1'al1OU i ldil o hotivail, outlook, I iv e snail o aol,r,„i • copy and paste into your email: g2n4p-6105366419@sale.craigslist.org Fireworks - $1 hide this posting ima e 1 of 5 I am selling all kind of fireworks Call or text me for prices 424.263.8001 Cakes: -200g cakes from 8 shots up to 30 shots - 500g cakes from 15 shots up to 220 shots Family packs: -Blockbuster - Super King of Pyro -Rolling in the Dough Roman Candle: -Neon 5 pack - 6 pack with 10 shots each stick Firecracker: - 2000 rolls -16000 rolls - bricks Skyrockets: - Alien screaming rockets with 144 pcs -Assorted rockets with 12 pcs {00027894.DOCX; 1} (7wole I !dp) -Sky Bolts with 5 rockets -Banzai with 6 rockets -8oz rockets with 12 rockets Mortar Shells: -Excalibur with 24 shots -UV Large 4" shells with 24 shots - Triumph Large 4" shells with 24 shots -Pogada Large 4" shells with 24 shots - G Force XL 5" shells with 24 shots -Neon Fusion 5" shells with 6 shots Other stuff: Saturn missiles 300 shots Big Missiles (not Saturn) Y do NOT contact me with unsolicited services or offers post id: 6105366419 posted: 5 days ago updated: 5 days ago (April 26, 2017) {00027894.DOCX; 1} Please immediately confirm receipt of this fax by calling 333-6702 CITY OF LODI P. O. BOX 3006 LODI, CALIFORNIA 95241-1910 ADVERTISING INSTRUCTIONS SUBJECT: SUMMARY OF ORDINANCE NOS. 1941 —1943 PUBLISH DATE: SATURDAY, MAY 6, 2017 LEGAL AD TEAR SHEETS WANTED: One 11) please SEND AFFIDAVIT AND BILL TO: LNS ACCT. #0510052 JENNIFER M. FERRAIOLO, CITY CLERK City of Lodi P.O. Box 3006 Lodi, CA 95241-1910 DATED: THURSDAY, MAY 4, 2017 ORDERED BY: JENNIFER M. FERRAIOLO CITY CLERK AMELA ! ARRIS EPUTY Y CLERK ELIZABETH BURGOS ADMINISTRATIVE CLERK Verify Appearance of this Legal in the Newspaper — Copy to File SEND PROOF OF ADVERTISEMENT. THANK YOU!! Emailed to the Sentinel at dianer@lodinews.com at (time) on (date) (pages) LNS Phoned to confirm receipt of all pages at (time) PME ES (initials) N:\Admin istration\CLERK\OrdSummaries\Adv ins. doc CITY OF LODI ORDINANCE NO. 1941 AN ORDINANCE OF THE LODI CITY COUNCIL AMENDING LODI MUNICIPAL CODE CHAPTER 13.20 — ELECTRICAL SERVICE — BY REPEALING AND RE-ENACTING ARTICLE III, "RATES," IN ITS ENTIRETY. The purpose of this ordinance is to adjust electric rates to 1) sufficiently fund capital maintenancefimprovements and meet reserve target requirements; and 2) align various rate schedules with recent changes approved by the City Council to address the changing utility business model. Introduced April 19, 2017. Adopted May 3, 2017, and effective July 1, 2017. AYES: Chandler, Johnson and Mayor Kuehne; NOES: Mounce and Nakanishi; ABSENT: None. ORDINANCE NO. 1942 AN ORDINANCE OF THE LODI CITY COUNCIL AMENDING LODI MUNICIPAL CODE TITLE 15 — BUILDINGS AND CONSTRUCTION — BY REPEALING AND RE-ENACTING CHAPTER 15.56, "ALARM SYSTEMS AND PERMITS," IN ITS ENTIRETY. The purpose of this ordinance is to address changes in State law, updates of alarm system technology, fine collection, and the growing number of false alarms requiring police response. Introduced May 3, 2017. Adoption to be considered May 17, 2017. AYES: Chandler, Johnson, Mounce, Nakanishi and Mayor Kuehne; NOES: None; ABSENT: None. ORDINANCE NO. 1943 AN ORDINANCE OF THE LODI CITY COUNCIL AMENDING LODI MUNICIPAL CODE TITLE 9 — PUBLIC PEACE, MORALS, AND WELFARE, SECTION 9.12.010 — AND REPEALING AND RE-ENACTING CHAPTER 9.13 IN ITS ENTIRETY. The purpose of this ordinance is to comply with State fireworks laws, restrict the date and time allowed for the discharge of Safe and Sane fireworks, provide for the recovery of transaction costs for the seizure of illegal fireworks, and establish a third -party administrative citation procedure. Introduced May 3, 2017. Adoption to be considered May 17, 2017. AYES: Chandler, Mounce, Nakanishi, and Mayor Kuehne; NOES: Johnson; ABSENT: None. Jennifer M. Ferraiolo, City Clerk City of Lodi May 3, 2017 Certified copies of the full text of these ordinances are available in the office of the Lodi City Clerk. DECLARATION OF POSTING ORDINANCE NO. 1943 AN ORDINANCE OF THE LODI CITY COUNCIL AMENDING LODI MUNICIPAL CODE TITLE 9 — PUBLIC PEACE, MORALS AND WELFARE, SECTION 9.12.010 — AND REPEALING AND RE-ENACTING CHAPTER 9.13 IN ITS ENTIRETY. On Thursday, May 4, 2017, in the City of Lodi, San Joaquin County, California, a certified copy of Ordinance No. 1943 (attached hereto, marked Exhibit "A") was posted in the Lodi City Clerk's Office. I declare under penalty of perjury that the foregoing is true and correct. Executed on May 4, 2017, at Lodi, California. ?1,2,Atuel) ela M. F ris eputy City erk ordsummaries\aaDecPost. d oc ORDERED BY: JENNIFER M. FERRAIOLO CITY CLERK Elizabeth Burgos Administrative Clerk ORDINANCE NO. 1943 AN ORDINANCE OF THE LODI CITY COUNCIL AMENDING LODI MUNICIPAL CODE TITLE 9 – PUBLIC PEACE, MORALS AND WELFARE, SECTION 9.12.010 AND REPEALING AND RE- ENACTING CHAPTER 9.13 IN ITS ENTIRETY BE IT ORDAINED BY THE LODI CITY COUNCIL AS FOLLOWS: Section 1. Lodi Municipal Code Title 9 - Public Peace, Morals and Welfare, Section 9.12.010 - Discharge of Weapons and Fireworks -Fires - is hereby amended and shall read as follows: 9.12.010 Discharge of Weapons and Fireworks—Fires. A. Any person who does any of the following without first obtaining a special permit therefore, in writing, from the Chief of Police, which permit shall designate the time and place of such firing or discharging, is guilty of a misdemeanor: 1. Fires or discharges any pistol, gun, rifle, firearm, cannon anvil loaded with powder, bow, airgun or sling, or projects any other dangerous missile within the city. B. Except as provided in Chapter 9.13 of this Code, any person who does any of the following without first obtaining a special permit therefore, in writing, from the Fire Chief, which permit shall designate the time and place of such firing or discharging, is guilty of a misdemeanor: 1. Discharges, or explodes any firecrackers, firerockets, roman candles, chasers, or other fireworks of any nature or kind; or 2. Makes any bonfire of any nature or kind, or who makes any bonfire or burns any hay, straw, rubbish, shavings, or other combustible materials within the city limits. C. The provisions of this Section do not prohibit any person from shooting destructive animals within or upon his own enclosure, nor prohibit the establishment and maintenance of shooting galleries, in accordance with the ordinances of the city. Section 2. Lodi Municipal Code Title 9 - Public Peace, Morals and Welfare, Chapter 9.13 - Sale of Fireworks, is hereby repealed and reenacted in its entirety, and shall read as follows: 9.13.010 Definitions. The following words and phrases, as used in this Chapter, are defined as follows: A. "Citee" means any person or responsible person served with an administrative Citation charging him or her as a responsible person for violation of this Chapter. "Citation" means an administrative citation Issued pursuant to this Chapter to remedy a violation. 1 C. "City Manag means the City Manager of the Cit_ Lodi and/or designee or designees. D. "Code" means the Lodi Municipal Code. E. "Code Enforcement Officer" (CEO) means any Lodi firefighter or Lodi Police Officer and those Parks and Recreation employee's designated to have citation powers by the Parks and Recreation Director. "Dangerous Fireworks" mean Dangerous Fireworks as set forth in California State Fireworks Law (Sections 12505 and 12561 of the California Health and Safety Code and the relevant Sections of Title 19, Code of Regulations, Subchapter 6), as hereinafter may be amended from time to time, which are hereby incorporated by reference. G. "Director" means the City Manager and/or designee or designees. H. "Fire Chief" means the Fire Chief of the City of Lodi or other City Manager designee or designees. "Fireworks Task Force Costs" means those employee salary, overtime and benefit costs, disposal costs, clean-up costs, and operations costs incurred by the Lodi police, fire, and parks and recreation departments to operate a task force to enforce the provisions of this Chapter between June 28 and July 7 of each calendar year. Fireworks Task Force Costs shall not exceed twenty thousand dollars in the first year after the effective date of the ordinance from which this Chapter is derived, adjusted by the Consumer Price Index, San Francisco, All Consumers, annually thereafter. J. "Fireworks Wholesaler" means any person who sells fireworks to other wholesalers or retailers for resale; or any person, other than an importer, exporter, or manufacturer, who purchases fireworks from a manufacturer, importer or exporter for resale to a retailer or any other person for resale. K. "Hearing Officer" means the person appointed by the City Manager to serve as the Hearing Officer for administrative hearings under this Chapter. L. "Issuance" or "Issued" means any of the following: 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 Section 415.10) of Chapter 4 of Title 5 of Part 2 of the Code of Civil Procedures; or 2. Mailing of administrative fine Citation to the Citee by certified mail with return receipt to the address shown on the county's latest equalized property taxes assessment rolls; or 3. By personally serving the responsible person 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, 2 ,nd thereafter mailing by First Cla. .Mail, postage pre -paid, a copy to the recipient at the address where the copy was left; or b. In the event the Responsible person cannot be served by First Class Mail, postage pre -paid, 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 pre -paid, to the responsible person in violation at the address of the property where the violation exists. "Lodi City Clerk" or "City Clerk" means the Lodi City Clerk and/or designee or designees. N. "Nonprofit Organization" means: (1) any nonprofit association, charity, church, corporation, club, or society organized primarily for veteran, patriotic, welfare, civic, benevolent, betterment, youth activities, or charitable purposes and has obtained a nonprofit status with either the California Franchise Tax Board or the Internal Revenue Service; or (2) a group which is an integral part of a recognized nonprofit national organization having such tax exempt status; or (3) an organization affiliated with and officially recognized by an elementary, junior high school, high school, school district, and/or college that serves, in whole or in part, the residents of Lodi. To qualify as a "nonprofit" under in this definition, the entity must have a principal and permanent meeting place within the city limits of the City of Lodi. O. "Person" 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 Chapter occurred. "Principal and Permanent Meeting Place" means and includes, but is not limited to, a permanent structure, playing field, geographic area, or service population which resides in or is located within the city limits of the City of Lodi. Q. "Residents of the City" or "City Residents" means and includes owners of businesses and/or property in the city limits as well as occupants of residential dwellings within the city limits of the City of Lodi. R. "Responsible Person" means 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. There is a rebuttable presumption that the record owner of real property, as shown on the county's latest equalized property taxes assessment rolls, and a lessee of real property 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 eighteen 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. 3 S. "Safe and S ; Fireworks" (a.k.a. "State-Approvec •eworks") mean Safe and Sane Fireworks as defined in California State Fireworks Law (Sections 12529 and 12562 of the Health and Safety Code and the relevant Sections of Title 19, Code of Regulations, Subchapter 6), as hereinafter may be amended from time to time, which are hereby incorporated by reference. T. "Violation" or "Violates" refers to any violation of any provision of this Chapter. 9.13.020 Sale and Discharge—Time limit. A. Subject to the provisions of this Chapter, the State Fireworks Law, Sections 12500 through 12728 of the California Health and Safety Code, and any regulations promulgated thereunder, Safe and Sane Fireworks, as defined herein, may be sold within the city limits of the City of Lodi only during the period beginning at 12:00 noon on June 28 and shall not continue after 9:00 p.m. on July 4 of the same year. The sale of fireworks shall be permitted only from 12:00 noon to 9:00 p.m. on June 28; from 9:00 a.m. to 9:00 p.m. daily from June 29 through July 4. No fireworks classified as "Dangerous Fireworks" by Section 12505 of the California Health and Safety Code may be sold within the city limits of the City of Lodi. B. Subject to the provisions of this Chapter, the State Fireworks Law, Sections 12500 through 12728 of the California Health and Safety Code, and any regulations promulgated thereunder, Safe and Sane Fireworks may be discharged within the city limits of the City of Lodi only on July 4, from 9:00 a.m. to 11:00 p.m. C. No fireworks classified as "Dangerous Fireworks" by Section 12505 of the California Health and Safety Code may be discharged within the city limits of the City of Lodi. D. The use or discharge of fireworks within fifty feet of any fireworks sales stand is prohibited. 9.13.030 Permit Required—Issuance—Limitations. A. Except as provided in this Chapter, it is unlawful to offer for sale or sell at retail "Safe and Sane Fireworks" without having first applied for and been issued a permit therefor, in the manner set forth in this Chapter. B. Permits for the sale of Safe and Sane Fireworks shall be issued only to nonprofit organizations, and such fireworks shall be sold only at the outdoor sales stands, as more specifically set forth hereinafter. C. Permits shall be issued by lottery. The lottery shall take place at a time, place, and manner determined by the Fire Chief in accordance with administrative rules and procedures adopted by the Fire Chief. Each applicant shall receive one lot. D. No more than six such permits shall be issued and be outstanding at any time. E. No nonprofit organization may receive more than one permit for the sale of fireworks during any one calendar year. Only one application per school will be allowed. If an organization is affiliated with a recognized educational institution as defined in Section 9.13.010 of this Chapter, but maintains a separate tax-exempt status with the Internal Revenue Service or the California Franchise Tax Board, said nonprofit organization shall be allowed a separate application. F. No nonprofit organization may be awarded a permit for more than two consecutive calendar years. 4 G. Any applicant that has had a fireworks sales permit suspended or revoked within the prior three calendar years shall be eligible for a fireworks sales permit only upon demonstrating to the Fire Chiefs reasonable satisfaction that suitable arrangements have been made to preclude future violations. 9.13.040 Permit Application—Regulations—Limitations. A. All applications for a permit to sell fireworks may be filed with the Lodi Fire Department between the first business day in March and the last business day in March of each year. All applications shall be accompanied by an application fee in an amount as may be established from time to time by resolution of the City Council. B. All permit applications must be properly completed and submitted to the Lodi fire department before the close of business on the last business day in March. Permit applications that are incomplete or filed late shall not be processed. C. All permit applications shall be made in writing on a form supplied by the Lodi Fire Department. A completed permit application shall be accompanied by an assurance that, if the applicant is issued a permit, the applicant shall, before receipt of such permit, deliver to the city the following items and/or information: 1. Proper identification and signature of the permit applicant; 2. The proposed location of the fireworks sales stand; 3. A detailed description of the fireworks proposed to be sold; 4. The written consent of the owner of record and/or lessor in control of the property upon which the proposed sales stand will be located; 5. The fireworks distributor's business name, address, telephone number, and person that is the point of contact; 6. A site plan, with dimensions indicating the location of all existing buildings, structures, driveways, flammable materials, and rights of way where the proposed sales stand will be located; 7. Proof of a temporary sales tax permit from the State Board of Equalization or proof of application; 8. A certificate of insurance evidencing current and valid commercial general liability, property damage, and product liability insurance of not Tess than two million dollars combined single limit, from a company authorized to transact the business of insurance in the State of California. The insurance company must have an AM Best Rating of not less than A-; 9. The certificate of insurance must provide an appropriate additional insured endorsement to the insurance policy or policies, which names the City of Lodi and its officers, employees, agents, and volunteers as additional insured's under the policy or policies; 10. Proof of a State Fire Marshal retail fireworks license; 5 11. Such other irmation and documentation that Fire Chief in his or her reasonable discretion may require; 12. Temporary Event Permit. Each Applicant Shall Also File A Temporary Event Permit Application as required by Lodi Municipal Code Section 17.78.050 with the Community Development Department; 13. Reimbursement Agreement. An Agreement in a form to be obtained from the City Attorney's Office between the City of Lodi and the permittee's fireworks distributor, requiring the distributor to indemnify the city for that distributor's pro rata share of all Fireworks Task Force Costs incurred during the period that fireworks may be sold under this Chapter. D. Each applicant shall file with the city, at the time of filing the permit application, a nonrefundable application fee as may be established from time to time by resolution of the City Council. If selected in the lottery as a permittee, a letter of credit, certificate of deposit, or a surety bond made payable to the city in the amount as set by resolution of the City Council to assure compliance with the provisions of this Chapter shall be filed with the city. Such deposit certificate or bond shall be refundable upon compliance with the provisions and requirements of this Chapter, including but not limited to, the removal of the sales stand, cleaning of the site, and full passage of the city's final site inspection. E. The Fire Chief is authorized to promulgate administrative regulations and procedures necessary for the successful and effective implementation of this Chapter including rules and procedures governing the submission of applications for permits to sell Safe and Sane Fireworks, inspections of fireworks stands, operation of fireworks stands, and such regulations relating to the sale of Safe and Sane Fireworks as may be necessary for the protection of life and property. Said administrative regulations and procedures shall be set forth in writing and are subject to prior approval by the City Attorney. 9.13.050 Prerequisites to Issuance of Permit. Permits to sell fireworks shall only be issued to applicants that meet all of the following qualifications: A. The applicant must be a nonprofit organization that conducts its activities primarily for the benefit of the city and its residents. B. The applicant must have been organized and established in the city limits of the City of Lodi for a minimum of one year continuously preceding the filing of application for the permit, and must have a bona fide membership of at least ten members who are residents of the City. 9.13.060 Permit applications—Notice of Acceptance or Rejection—Selection Procedure—Fee. A. The Fire Chief shall notify all applicants by the third Monday in April regarding the results of the lottery and the applicants that have been granted permits, and said successful lottery/prospective permittees will have until the close of business on the third Monday in May to submit their final paperwork required in subsection C of Section 9.13.040. If any successful lottery/prospective permittee fails to submit its paperwork by the deadline, in any given year, the Fire Chief shall give notice on the third Wednesday in May to the requisite number of substitute lottery applicants that they have until the second Monday in June to submit paperwork as required by subsection C of Section 9.13.040. B. All applicants that have been granted permits shall, prior to Issuance of the permit, pay a permit fee in an amount established from time to time by resolution of the City Council. The 6 permit fee is intended to er the cost of the first inspection the fireworks stand. Any necessary subsequent inspections shall be subject to a re -inspection fee in an amount as established from time to time by resolution of the City Council. The letter of credit, certificate of deposit, or a surety bond made payable to the city and provided by the applicant pursuant to subsection D of Section 9.13.040 shall be held by the city to be available to cover the cost of removal of the fireworks sales stand and site clean-up in accordance with subsection P of Section 9.13.090. C. Each applicant that has been granted a permit shall have no less than two members of its sales staff attend an operator safety seminar approved and supervised by the Lodi Fire Department and provided by a licensed firework's wholesaler or the City of Lodi Fire Department. 9.13.070 Suspension of permit—Appeal procedure. A. The Fire Chief may suspend immediately and without notice or hearing the permit of any permittee that violates any California statute, rule, regulation, or this Code while operating or preparing to operate a fireworks sales stand during or immediately preceding any period of sale. If the Fire Chief reasonably believes that a violation has occurred during, immediately preceding, or immediately following the authorized period of sale, he or she shall have power to prohibit the permittee from acquiring a fireworks sales permit in the future. B. Any decision of the Fire Chief made pursuant to this Chapter shall be subject to review by the City Manager. When the decision being appealed affects the current sale period, such review shall be held at the earliest possible time that the permittee, City Manager and the Fire Chief can schedule a hearing for such review. For decisions that do not affect the current sales period, the hearing shall be held within ten city business days after the request for hearing, which request must be made in writing within ten calendar days after notice of the decision being appealed. The City Manager may set aside the decision, modify it, or revoke in his or her reasonable discretion. The decision of the City Manager shall be final. 9.13.080 Fireworks Sales Stand—Operation. A. It is unlawful for the permittee to allow any person other than individuals who are members and/or volunteers of the permitted nonprofit organization, or the spouses or adult children of such members, to sell or otherwise participate in the sale of fireworks. B. It is unlawful for the permittee to pay any consideration to any person for selling or otherwise participating in the sale of fireworks. C. Each sales stand must have a minimum of one adult (twenty-one years of age or older) in attendance and in charge thereof while fireworks are stored therein. D. No person may sleep in or remain in the stand after close of business. E. All unsold fireworks must be removed from the stand during non -sale hours and stored in a centrally located locked metal container or other secure and fire safe structure during non - sale periods. Each fireworks distributor shall provide a single storage location and container for storage of its stand's fireworks. The container shall be approved by the Fire Chief and located in an M1 or M2 zoned location approved by the Community Development Director and the Fire Chief. F. Each sales stand must have on duty at all times during the sales period, at least one salesperson (twenty-one years of age or older) who attended the City of Lodi Fire Department operator safety seminar, required pursuant to subsection C of Section 9.13.060. 7 G. The sale of fireworks shall conform to restrictions of Section 9.13.020. H. All unsold fireworks and accompanying litter shall be removed from the sales location by 10:00 p.m. on July 4 and the sales stand shall be removed by 12:00 noon on July 9 of each year. I. Permittees shall require all persons who appear to be under the age of thirty years to provide proof of age and shall make no sales of fireworks to persons younger than eighteen years of age. 9.13.090 Fireworks sales stands—Requirements. All retail sales of "Safe and Sane Fireworks" shall be made only from within a temporary fireworks sales stand, and sales from any other building or structure is hereby prohibited. Fireworks sales stands are subject to the following requirements: A. Fireworks sales stands shall be put in place by the permittee no earlier than 8:00 a.m. on June 24 of each year. B. No fireworks sales stand shall be located within twenty-five feet of any other building or structure, within five feet of any curb line, or within one hundred feet of any gasoline pump. C. The stand must be located on a developed lot with paved parking areas and driveway approaches and the stand itself must be located on a paved surface. D. The stand may not occupy parking spaces required for the primary use of the site, or interfere with required access, circulation, fire lanes or fire hydrants. E. No fireworks stand shall be located within one hundred feet of any building used as a school, day care, hospital, place of detention, public garage, or place of assembly that can accommodate three hundred or more occupants, or within one hundred feet of a residential zone. Fireworks stands shall only be permitted in a district zoned CS, C2, CM, M1, or M2 or the PD designation equivalents. F. A minimum of twenty feet of separation shall be provided between the fireworks sales stand and any vehicle(s), with the exception of loading or unloading the permittee's supply vehicle. G. No weeds or other combustible materials are permitted within twenty-five feet of the fireworks sales stand. H. All fireworks sales stands shall be preapproved by the Fire Chief prior to opening for business. I. All general use fifteen amp and twenty amp receptacles shall have listed ground -fault circuit -interrupter protection and electrical installations shall be approved by the city building inspector and/or the Fire Department prior to the stand opening for business. J. All fireworks sales stands shall be built and maintained in accordance with the safety requirements of the city prior to opening for business. K. No generators shall be allowed within twenty-five feet of any fireworks sales stand. 8 L. Smoking and the c umption of alcoholic beverages sh, iot be allowed within fifty feet of any fireworks sales stand and "no smoking" signs shall be displayed on and in the fireworks sales stand. M. Permittees shall place no signs in the public right-of-way. N. Each fireworks sales stand shall be provided with two, two -and -one-half gallon pressurized water type fire extinguishers, or two 2A1OBC dry chemical/powder type fire extinguishers, in good working order, and easily accessible for use in case of fire. 0. The fireworks sales stand shall be removed from the temporary location by 12:00 p.m. on July 9 of each year, all unsold fireworks by 10:00 p.m. July 4, and any accompanying litter shall be cleared from the location by 5:00 p.m. on July 5. If the permittee does not remove the stand and/or clean the sales site as required by this Chapter, the city may do so, or cause the same to be done, and the reasonable cost thereof shall be charged against the permittee, and his or her deposit, certificate, or surety. In addition, any permittee found to be in violation of this Section shall be subject to an administrative penalty imposed in accordance with Section 9.13.160. P. The permit to sell fireworks shall be displayed in a prominent place in the fireworks sales stand and shall at all times be visible to members of the public. Q. Each permittee under this Chapter shall display a poster measuring eighteen inches by thirty-two inches that shall be posted at the point of sale of the fireworks and hand out a flyer with each sale to notify purchasers of all applicable restrictions established by this Chapter. All information shall be provided in English and Spanish. The permittee shall provide the posters and fliers, which shall be approved by the Fire Chief prior to the permittee opening for business. R. Fireworks Stands shall be either twenty-four or thirty-two feet long by eight feet wide. Twenty -four -foot stands shall have two exits and a maximum occupancy of six people. Thirty- two -foot stands shall have two exits and a maximum occupancy of eight people. 9.13.100 Fee imposed Upon Permittees. A. The City of Lodi will require each applicant receiving a permit to pay a fee, as described in Section 1(e)(3) of Article XIII C of the California Constitution, and the City of Lodi will require each permittee to pay their pro rata portion of the costs that the City of Lodi has incurred related to the following: 1. Processing and issuing permits; 2. Inspection of fireworks stands; 3. Public education and awareness campaign regarding the safe and responsible use of Safe and Sane Fireworks and the dangers and risks posed by the use of illegal fireworks; and 4. With respect to the sale and use of Safe and Sane Fireworks, including extra personnel time, and cleanup of fireworks trash and debris. "Extra personnel time" shall be defined as employee or contracted employee time that the City of Lodi would not otherwise incur but for the sale and use of Safe and Sane Fireworks in the City of Lodi and is the amount to be paid by the Fireworks Wholesaler pursuant to subsection 9.13.040(C)(13). 9 B. No permittee may r for sale or sell Safe and Sane Fi. orks, unless and until the permittee has paid to the city the fee imposed by this Section. C. The fees established pursuant to this Section are not intended to generate excess revenue for the city, but rather to attempt to offset costs. 9.13.110 Temporary Sales Tax Permit—Requirements. A. Each permittee must obtain a temporary sales tax permit from the State Board of Equalization. B. The temporary sales tax permit shall be displayed in a prominent place in the fireworks sales stand and at all times be visible to members of the public. 9.13.120 Possession of Dangerous Fireworks. California Health and Safety Code Section 12677 provides that it is unlawful for any person to possess Dangerous Fireworks without holding a valid permit and the criminal penalty for such violations is set forth in California Health and Safety Code Section 12700. In addition, or in the alternative, any person who possesses a gross weight, including packaging, of less than 25 pounds of unaltered Dangerous Fireworks, as defined in Section 12505 of the California Health and Safety Code, may be subject to an administrative fine as set forth in this Chapter. 9.13.130 Permissible Locations for Discharge. The discharge of fireworks in the city shall be limited to private property except as otherwise provided in this Chapter. No fireworks shall be discharged on public, or semipublic properties, or in a public street or right-of-way except in those areas approved in writing by the Fire Chief. For purposes of this Chapter, "semipublic" is defined as private property generally open for use by the public but not owned or maintained by a governmental body. Such property includes without limitation church property, shopping center property, and other property generally used by patrons of a commercial or private business establishment, but not including private streets in residential areas. 9.13.140 Prohibitions on Discharge. A. It is unlawful for any person or responsible person to ignite, explode, project, or otherwise fire or use any fireworks, or permit the ignition, explosion, or projection thereof, upon, over, or onto the property of another without his or her consent, or to ignite, explode, project, or otherwise fire or make use of, any fireworks within ten feet of any residential dwelling or other structure used as a place of habitation by human beings. B. Except as provided in subsection C of this Section, it is unlawful for individuals under eighteen years of age to sell, purchase, possess, use, or discharge "Safe and Sane Fireworks." C. It is unlawful for any person having the care, custody, or control of a minor under the age of eighteen (18) years to permit such minor to discharge, explode, fire, or set off any dangerous, illegal fireworks, at any time. It is unlawful for any person having the care, custody, or control of a minor under the age of eighteen (18) years 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 eighteen years of age and during the hours and on the days permitted by this chapter. 10 9.13.150 Seizure of F corks. A. Pursuant to California Health and Safety Code Section 12500 et seq., the Fire Chief, his or her authorized representatives, and law enforcement officers may seize any fireworks described in California Health and Safety Code Section 12722, including, but not limited to: 1. Dangerous Fireworks, including fireworks kits, used, possessed, stored, manufactured, or transported by a person who does not possess a valid permit; Safe and Sane Fireworks stored in violation of the conditions required by a permit; 3. Safe and Sane Fireworks sold or offered for sale at retail that do not bear the State Fire Marshal label of registration and firing instructions; 4. Safe and Sane Fireworks sold or offered for sale at retail that are in unsealed packages or containers that do not bear the State Fire Marshal label of registration and firing instructions; and 5. Fireworks still possessed by a person who has just thrown any ignited fireworks at a person or group of persons. B. The City may charge any person, firm, or corporation, whose fireworks are seized pursuant to this Section or the State Fireworks Law, an amount which is sufficient to cover the cost of transporting, storing, and handling the seized fireworks. If the City or a court determines that a person's, firm's, or corporation's fireworks are illegally or erroneously seized, or if legal proceedings do not result in a conviction for violation of any provision of the Lodi Municipal Code or State Fireworks Law, any funds collected pursuant to this Section or the State Fireworks Law shall be refunded, or if charged but unpaid, canceled. 9.13.160 Administrative penalties—Appeals. A. This Chapter authorizes the imposition of administrative fines on any person or responsible 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 citizens of the City of Lodi. 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 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 California Health and Safety Code Section 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 Section 53069.4, Health and Safety Code Section 12557, and the police power of the City of Lodi. B. The issuance of citations imposing administrative fines may be performed at the discretion of the officials of the City of Lodi; and the issuance of a citation to any person or responsible person constitutes but one remedy of the city to redress violations of this Chapter by any person or responsible 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 Chapter by any person or responsible person, which this city may otherwise pursue. C. The imposition of fines related to "Dangerous Fireworks" under this Chapter shall be limited to persons or responsible person(s) who possess, sell, use and/or display, or the seizure of, twenty-five pounds or less (gross weight) of such Dangerous Fireworks. 11 D. Fines collected pursuant to this Chapter related to "Dangerous Fireworks" shall not be subject to Health and Safety Code Section 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 of California, the city shall hold in trust two hundred fifty dollars or twenty-five 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." E. 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 Chapter 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 real property for all violations of this Chapter existing on their real property. Each individual use, display, and/or possession shall constitute a separate violation and each shall be subject to a separate administrative fine. 9.13.170 Issuance of Administrative Citation—Contents. A. 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(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. B. Each administrative Citation shall contain the following information: 1. The name, mailing address, date of birth, CDL number (if available), and home or business telephone number of the responsible person charged with any violation of this Chapter; 2. The address or description of the location of the violation; 3. The date or dates on which the person violated this Chapter; 4. The Section or Sections of this Chapter that were violated; 5. A description of the violation(s); 6. The amount of the administrative fine for each violation, the procedure in place to pay the fines, and any late fee and interest charge(s), 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; 7 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); 8. The names, addresses, and telephone numbers of any witnesses to the violation(s); 9. 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 12 at the time .s issuance. The failure or refusal c Citee to sign a citation or provide the information required on the 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 this Chapter; 10. Any other information deemed necessary by the Director for enforcement or collection purposes. 9.13.175 Third -party Administrative Citations. A. Whenever one or more private persons observe a violation of this Chapter of the Lodi Municipal Code, they may request that an administrative citation be issued to a responsible person by a CEO. The private persons will be required to sign an affidavit under penalty of perjury verifying that they personally observed a violation of this Code, and may be required to testify at an administrative hearing as provided in this Chapter of the Lodi Municipal Code if the administrative citation is appealed. Failure of the private persons to testify at an administrative hearing if required by the department prosecuting the violation on behalf of the private persons may result in a dismissal of the administrative citation. The CEO shall have the discretionary authority to issue an administrative Citation to a responsible person where, on the basis of an affidavit and any other available evidence, a violation of this Chapter of the Lodi Municipal Code has occurred. B. Each third -party administrative citation shall contain: 1. The date of the violation; 2. The address or a definite description of the location where the violation occurred; 3. The section of this Code violated and a description of the violation; 4. The amount of the fine for the Code violation; 5. A description of the fine payment process, including a description of the time within which and the place to which the fine must be paid; 6. An order prohibiting the continuation or repeated occurrence of the Code violation described in the administrative citation; 7 A description of the administrative citation review process, including the time within which the administrative citation may be contested and the place from which a request for hearing form to contest the administrative citation may be obtained; 8. The name, signature and department issuing the citation on behalf of the private persons. C. Each third -party administrative citation shall be accompanied by an affidavit from the private persons setting forth a description of the violation as observed by the private persons signed under penalty of perjury. 9.13.180 Administrative Fines. A. Each person or responsible person who violates any provision of this Chapter 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: 13 Number of offense in 1 year period Amount of Administrative Penalty Late Charge $250.00 Total Amount of Penalty plus Late Charge $1,250.00 First $1,000.00 Second $2,000.00 $500.00 $2,500.00 Third $3,000.00 $1,000.00 $4,000.00 B. Each person or responsible person who uses "Safe and Sane Fireworks" on or at dates, times, and/or locations other than those permitted by the ordinance codified in this Chapter shall be subject to the imposition and payment of an administrative fine or fines as provided below: Number of offense in 1 year period Amount of Administrative Penalty Late Charge Total Amount of Penalty plus Late Charge First $250.00 $75.00 $325.00 Second $500.00 $150.00 $650.00 Third $750.00 $300.00 $1,050.00 C. In the case of a violation of any of the provisions listed above, the administrative fine(s) shall be due and payable within thirty 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 Section 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 twelve-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. D. All administrative fines and any late charges and interest 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 this Chapter 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. E. Upon confirmation of the citation or when the citation is deemed confirmed, all unpaid administrative fines, late fees, and/or interest 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 interest. F. 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(s) of a violation of this Chapter. 9.13.190 Right to an Administrative Hearing. A. Any Citee may contest the violation(s), or that he or she is a responsible person, by filing a request for an administrative hearing on a city -approved form with the Lodi Fire Chief's office within thirty calendar days from the issuance date of a citation. If the Fire Chief does not receive 14 the request in the required .e period, the Citee shall have waivE right to a hearing and the citation shall be deemed confirmed and final. B. No fees shall be charged for the filing of a request for a hearing. C. Citees must 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 if the citation is overturned. D. A request for a hearing shall contain the following: 1. The citation number; 2. The name, address, telephone number, and any facsimile numbers and e-mail addresses of each person or responsible person contesting the citation; 3. A statement of the reason(s) why a citation is being contested; 4. The date and signature of the Citee(s). E. The city will notify all persons or responsible person(s) who file 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. F. The hearing will be conducted within sixty calendar days of the date a timely and complete request is received by the Fire Chief's office. G. 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. 9.13.200 Administrative Hearing—Procedures. A. 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. B. Administrative hearings are informal, and formal rules of evidence and discovery do not apply. Photographs of seized fireworks shall be admissible evidence of the violation. The city bears the burden of proof to establish a violation and responsibility therefore by a preponderance of evidence. The citation is prima facie evidence of the violation, however, the CEO who issued the citation is required to attend or participate at the hearing. The Citee(s) and CEO, if present, shall have an opportunity to present evidence and witnesses and to cross- examine witnesses. C. 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 15 attend or does not submit ; 'itten declaration in a timely manner, or she 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. D. 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. 9.13.210 Hearing Decision—Right of Appeal. A. 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 therefore. B. The Hearing Officer shall serve Citee(s) 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. C. The decisions of the Hearing Officer may be appealed by the Citee to the City Council within thirty calendar days after the date of service of the decision. Each decision shall contain a statement advising the Citee of this appeal right and the procedure for its exercise. D. If a Hearing Officer's decision is not appealed in a timely manner, the decision shall be deemed confirmed. E. If a responsible person prevails on appeal, the city shall reimburse his or her fine deposit within thirty calendar days of the City Council's decision on the appeal. 9.13.220 Financial Reporting. On or before September 1 of any year authorized pursuant to a permit, the permittee shall submit to the City Clerk a financial statement by the treasurer or financial officer of the permittee setting forth the total gross receipts from the fireworks stand operated by the permittee; all expenses incurred and paid in connection with the purchase of fireworks and the sale thereof; and the most recent report filed by the permittee to the State Board of Equalization. The filing of such statement shall be a condition precedent to the granting of any subsequent permit under this Chapter. 9.13.230 Provisions Supplementary The provisions of this Chapter are supplementary to the provisions of the Fire Code of the City of Lodi. In case of a direct conflict between the provisions of the Fire Code of the city, and the provisions of this Chapter, the provisions of this Chapter shall prevail. Except with respect to such direct conflict, the provisions of the Fire Code of City of Lodi shall remain in full force and effect. Section 3. No Mandatory Duty of Care. This ordinance is not intended to and shall not be construed or given effect in a manner which imposes upon the City, or any officer or employee thereof, a mandatory duty of care towards persons or property within the City or outside of the City so as to provide a basis of civil liability for damages, except as otherwise imposed by law. Section 4. Severability. If any provision of this ordinance or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the ordinance which can be given effect without the invalid provision or application. To this end, the provisions of this ordinance are severable. The City Council 16 hereby declares that it we have adopted this ordinance irresF ,ve of the invalidity of any particular portion thereof. Section 5. All ordinances and parts of ordinances in conflict herewith are repealed insofar as such conflict may exist. Section 6. Effective Date and Publication. This Ordinance shall take effect thirty (30) days after its adoption. In lieu of publication of the full text of the ordinance within fifteen (15) days after its passage, a summary of the ordinance may be published at least five (5) days prior to and fifteen (15) days after adoption by the City Council, and a certified copy shall be posted in the office of the City Clerk pursuant to Government Code Section 36933(c)(1). Approved this 17th day of May, 2017 DOUG KUEHNE Attest: Mayor JENNIFER M. FERRAIOLO City Clerk State of California County of San Joaquin, ss. I, Jennifer M. Ferraiolo, City Clerk of the City of Lodi, do hereby certify that Ordinance No. 1943 was introduced at a regular meeting of the City Council of the City of Lodi held May 3, 2017, and was thereafter passed, adopted, and ordered to print at a regular meeting of said Council held May 17, 2017, by the following vote: AYES: COUNCIL MEMBERS — NOES: COUNCIL MEMBERS — ABSENT: COUNCIL MEMBERS — ABSTAIN: COUNCIL MEMBERS — I further certify that Ordinance No. 1943 was approved and signed by the Mayor on the date of its passage and the same has been published pursuant to law. Approved as to Form: JOHN P. FUKASAWA City Attorney 17 JENNIFER M. FERRAIOLO City Clerk