HomeMy WebLinkAboutOrdinances - No. 1943ORDINANCE NO. 1943
AN ORDINANCE OF THE LODI CITY COUNCIL
AMENDING LODI MUNICIPAL CODE TITLE 9 – PUBLIC
PEACE, MORALS AND WELFARE – SECTION 9.12.010,
"DISCHARGE OF WEAPONS AND FIREWORKS -FIRES,"
AND REPEALING AND RE-ENACTING CHAPTER 9.13,
"SALE OF FIREWORKS 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Sale of Fireworks, is hereby repealed and reenacted in its entirety, and shall read as follows: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, Recreation and Cultural Services employees designated
to have citation powers by the Parks, Recreation and Cultural Services 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
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.
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.
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
tottery/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 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 stands' 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.
1. 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. Ali
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 casts 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;
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
First
Second
Third
$1,000.00
$2,000.00
$3,000.00
$250.00
$500.00
$1,000.00
Total Amount of
Penalty plus Late
Charge
$1,250.00
$2,500.00
$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
Second
Third
Amount of Late Charge
Administrative Penalty
$250.00
$500.00
Total Amount of
Penalty plus Late
Char• e
$325.00
$650.00
$1,050.00
$750.00
$75.00
$150.00
$300.00
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 Chiefs 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 23rd day of May, 2017
Attest:
?ro.uw.c4
J�FNIFER M
C y Clerk
ERRAIOLO
DOUG KUE
Mayor
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 an adjourned regular meeting of said
Council held May 23, 2017, by the following vote:
AYES: COUNCIL MEMBERS — Chandler, Mounce, Nakanishi, and Mayor Kuehne
NOES: COUNCIL MEMBERS — Johnson
ABSENT: COUNCIL MEMBERS — None
ABSTAIN: COUNCIL MEMBERS — None
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.
Appro;, as tpFojm:
J
HN P. PUKASAWA
Deputy City Attorney
17
----, f 1, a----Q-AAALGA
J N, IFER !AYER NOLO
City Clerk