Chapter 8.30
FIREWORKS
Sections:
8.30.010 Findings and purpose.
8.30.030 Manufacturing and transport of fireworks.
8.30.040 Prohibition against possession, storage, sale, or use of fireworks.
8.30.050 Social host liability.
8.30.060 Certain uses – Exceptions.
8.30.070 Certain public displays – Exceptions.
8.30.100 Imposition of response costs for public safety responses.
8.30.010 Findings and purpose.
The city of Benicia finds that the sale, use, and/or discharge of fireworks in the city, whether classified as “dangerous fireworks” and/or “safe and sane fireworks” pursuant to Health and Safety Code Section 12500 et seq., will endanger life and property, and may encourage the use and/or discharge of fireworks in neighboring jurisdictions where their sale, use and/or discharge are prohibited. The provisions of this chapter are intended to regulate the use of all fireworks to provide for the safety of the community and the prevention of fires. (Ord. 22-10 § 1).
8.30.020 Definitions.
As used in this chapter, the following terms shall have the meanings set forth hereinbelow:
“City” means the city of Benicia.
“Fire chief” means the fire chief for the city or their designee.
“Fireworks” means any device containing chemical elements and chemical compounds capable of burning independently of the oxygen of the atmosphere and producing audible, visual, mechanical, or thermal effects which are useful as pyrotechnic devices or for entertainment. The term “fireworks” includes, but is not limited to, devices designated by the manufacturer as fireworks, firecrackers, torpedoes, skyrockets, roman candles, rockets, Dayglo bombs, sparklers, paper caps, chasers, fountains, smoke sparks, aerial bombs, fireworks kits, or other combustible device or explosive substance or any kind of fireworks, by whatsoever name known. “Fireworks” includes both “dangerous fireworks” and “safe and sane” fireworks as defined in the California Health and Safety Code.
“Social host” means a person who is either:
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 public or private property under a lease, permit, license, rental agreement, or contract; or
3. Any person who hosts, organizes, supervises, officiates, conducts, sponsors, or is otherwise in charge of a gathering on public or private property and, if such person is a minor, then that person’s parents or legal guardians.
“Enforcement officer” means any department authorized by the city manager to enforce violations of this chapter, including, but not limited to, the fire chief, the police chief, or the division of code enforcement of the city.
“Public safety services” and/or “response costs” mean the costs associated with a response to and abatement of a violation of this chapter, such as responses by the enforcement officer, fire department, police department, and/or other emergency response providers, including but not limited to:
1. The portion of the costs of salaries and benefits of the response personnel of the enforcement officer, fire department, and/or the police department for the amount of time spent responding to, remaining at, or otherwise dealing with a violation of this chapter and the administrative costs attributable to such response(s);
2. The cost of any medical treatment to or for any response personnel of the enforcement officer, fire department, police department, and/or other emergency response providers injured responding to, remaining at, or leaving the scene where a violation of this chapter occurred;
3. The cost of the use of any city equipment or property, and the cost of repairing any city equipment or property damaged in responding to, remaining at or leaving the scene where a violation of this chapter occurred; and
4. Any other costs recoverable in compliance with California Civil Code Section 1714.9.
“Responsible person” means a person or persons who cause(s) a violation under this chapter to occur or allow(s) a violation to exist or continue, by their 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. For purposes of this chapter, a social host is a responsible person unless found to be exempt under BMC 8.30.050(C). (Ord. 22-10 § 1).
8.30.030 Manufacturing and transport of fireworks.
The manufacturing and/or transportation of any fireworks is prohibited, except by a person who has been issued a permit by the office of the State Fire Marshal or is otherwise permitted to do so pursuant to provisions of state law, and such manufacturing or transportation is being performed in compliance with applicable requirements of Chapter 8.28 BMC and the California Vehicle Code. (Ord. 22-10 § 1).
8.30.040 Prohibition against possession, storage, sale, or use of fireworks.
Except as otherwise expressly provided in this chapter, it shall be unlawful for any person to possess, store, offer for sale, display for sale, sell at retail, or discharge any fireworks without a permit. Every such use and display shall be handled by a competent state-licensed operator approved by the chief and shall be located, discharged, or fired so as not to be hazardous to property or endanger any person. (Ord. 22-10 § 1).
8.30.050 Social host liability.
A. No social host shall knowingly allow any person to violate a provision of this chapter on property that is owned, occupied or otherwise used by the social host pursuant to a lease, permit, license, rental agreement, or contract; or at any gathering on public or private property that is hosted, organized, supervised, facilitated, officiated, conducted, or sponsored by the social host.
B. It is the duty of any social host who knowingly hosts, permits, or allows any gathering to take place to take all reasonable steps to prevent the possession and/or use of fireworks by that social host’s guest(s) or invitee(s).
C. No social host shall, with respect to private property where fireworks are possessed and/or used, be liable for a violation of this section if the social host can demonstrate that at the time of such violation the social host:
1. Had rented or leased the property to another person;
2. Was not present at the scene where a violation of this chapter occurred; and
3. Had no prior knowledge of the violation.
D. 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 chapter for violations occurring in the common areas of the property unless that person is responsible for the use of fireworks in the common area. (Ord. 22-10 § 1).
8.30.060 Certain uses – Exceptions.
This chapter does not prohibit, and does not authorize the confiscation of fireworks possessed for, the following:
A. Any special item containing pyrotechnic compositions which the State Fire Marshal, with the advice of the State Advisory Board, has investigated and determined to be limited to industrial, commercial, or agricultural use, or religious ceremonies when authorized by a permit granted by the fire chief and is classified as “exempt fireworks” in the Health and Safety Code.
B. The use of torpedoes, flares, or fuses by railroads or transportation agencies for signal purposes or illumination.
C. The sale, use or discharge of blank cartridges for ceremonial purposes, athletic or sports events, or military ceremonies or demonstrations.
D. “Party poppers” and “snap caps” as classified under Title 19 California Code of Regulations Sections 986.7 and 986.8. (Ord. 22-10 § 1).
8.30.070 Certain public displays – Exceptions.
Public displays of fireworks may be given with permission of the fire chief where such display will take place under the supervision and direction of a state of California licensed operator. The applicant shall apply for such permission at least 30 days in advance of the date of the display for which the permit is sought. The application shall be in the form prescribed by the fire chief and shall set forth the name and address of the applicant, the date and nature of the event and such other information as the fire chief may reasonably require.
The fire chief shall grant the permit as applied for or with condition thereto, unless the chief finds that to do so would be contrary to the public health, safety and welfare.
Every application for permission to conduct a public display of fireworks shall be accompanied by a nonrefundable fee as established by resolution of the city council. This fee shall be in addition to any fee or tax imposed by Chapter 8.28 BMC.
Every applicant shall agree to hold the city, its elected and appointed officials, officers and employees harmless from any and all claims for damages or other costs arising out of the activity authorized by the permit. (Ord. 22-10 § 1).
8.30.080 Liability insurance.
Any person, firm, or corporation applying for a public display permit shall furnish to the fire chief proof of coverage by a policy of public liability and property damage insurance. The policy shall provide limits of bodily injury and property damage liability of not less than $1,000,000 combined single limits for each occurrence annually as payment for damages to persons or property which may result from or be caused by such public display of fireworks, or any negligence on the part of the licensee of his or her or its agents, servants, employees or subcontractors presenting such public display. (Ord. 22-10 § 1).
8.30.090 Enforcement.
A. A violation of BMC 8.30.030, 8.30.040 and/or 8.30.050 constitutes a public nuisance and an immediate threat to public health and safety and shall in addition to any other penalties that may be imposed as set forth in Chapter 1.08 BMC be summarily abated by the enforcement officer, the fire department, or the police department, by all reasonable means, including, but not limited to:
1. Seizing, taking, removing, or causing to be removed, at the expense of the responsible person, all fireworks offered or exposed for sale, stored or held in violation of this chapter; and/or
2. Issuing an order requiring any party, gathering or event be disbanded and/or issuing a citation or written notice of violation under this chapter.
B. Administrative citations for violations of this chapter pertaining to fireworks shall be governed by Chapter 1.10 BMC. Violations of this chapter create an immediate danger to health and safety and therefore, no prior written warning under BMC 1.10.040(B) is required.
C. In addition to penalties imposed for violation of this chapter, each responsible person shall be liable for all costs incurred by the office of the State Fire Marshal for the transportation and disposal of any fireworks seized from the responsible person. The costs incurred by the office of the State Fire Marshal will be calculated based upon the regulations promulgated by that office. If those regulations have not been adopted by the office of the State Fire Marshal at the time a responsible person is cited for possession of fireworks under this chapter, the city will reserve 25 percent of any fine collected under this provision to cover the actual cost of disposal to the office of the State Fire Marshal. (Ord. 22-10 § 1).
8.30.100 Imposition of response costs for public safety responses.
In addition to any and all other costs, fees, penalties and expenses which may be assessed or imposed as a result of a violation of this chapter, any responsible person who violates any provision of this chapter shall be liable and responsible for, and shall be required to reimburse the city for, all public safety services costs and expenses incurred by the city in connection with the violation and abatement of the nuisance. The city shall notify the responsible person(s) of the imposition of such costs and expenses, and, in doing so shall set forth such costs and expenses with reasonable specificity. The response costs for public safety responses shall be separate and distinct from a citation and administrative fine imposed in accordance with Chapter 1.10 BMC. (Ord. 22-10 § 1).
8.30.110 Appeals.
The decision of the fire chief in acting on an application for permission to conduct a public display of fireworks in accordance with the provisions of this chapter shall be subject to an appeal in accordance with Chapter 1.44 BMC. (Ord. 22-10 § 1).
8.30.120 Cumulative remedies.
The remedies, fines, penalties and fees provided for under this chapter are cumulative and shall not restrict the city from any other remedy to which it is entitled under law or equity. Nothing in this chapter shall be deemed to preclude the imposition of any criminal penalty under state law or this code, nor shall anything in this chapter be deemed to conflict with any penalty or provision under state law, or to prohibit any conduct authorized by the state or federal constitution. This chapter shall not be interpreted in any manner that conflicts with the laws or constitution of the United States or the state of California.
Nothing in this chapter shall be construed as a waiver by the city of any right to seek reimbursement for actual response costs incurred through other legal remedies or procedures. (Ord. 22-10 § 1).