Chapter 10A
FIREWORKS1
Sections:
10A.2 Sale of fireworks—Permit.
10A.3 Application for a permit.
10A.4 Notice of granting or rejecting of permit.
10A.5 Qualifications for issuance of permit.
10A.8 Fireworks permit and service fees.
10A.9 Temporary sales tax permit required.
10A.10 Display of state license, city permit, sales tax permit, and city required posters.
10A.11 Prohibitions on discharge.
10A.16 Administrative penalties.
10A.17 Administrative cost recovery fees for public safety responses.
10A.1 Sale and use.
Safe and sane fireworks as defined by Section 12529 of the Health and Safety Code of the State of California may be sold within the City of Gilroy during the period beginning 9:00 am, July 1st, ending at 10:00 pm on July 4th each year pursuant to the provisions of this ordinance and not otherwise. (Ord. No. 98-9, § 1, 4-27-98)
10A.2 Sale of fireworks—Permit.
Except as provided herein, no persons shall offer for sale or sell at retail any fireworks of any kind without having first applied for and received a permit issued by authority of the fire chief. (Ord. No. 98-9, § 2, 4-27-98)
10A.3 Application for a permit.
All applications for a permit to sell fireworks shall:
(a) Be made in writing accompanied by a permit fee.
(b) Be made between the first business day and the last business day of April of each year.
(c) Set forth the proposed location of the fireworks stand.
(d) Be accompanied by an assurance that a one million dollar ($1,000,000) combined single limits insurance certificate designating the city as an additional insured, and a copy of the required license from the state fire marshal shall be provided to the fire chief prior to issuance of a permit.
(e) Include a statement that the applicant agrees to comply strictly with the terms of any retail permit granted it and furnish any additional information upon request of the city. (Ord. No. 98-9, § 3, 4-27-98)
10A.4 Notice of granting or rejecting of permit.
(a) Applicants for a permit shall be notified in writing by the fire chief by May 15th of the granting or rejection of such application for a permit.
(b) Applicants granted permits shall pay all required fees, provide proof of insurance and submit all other required documents by May 30th. (Ord. No. 98-9, § 4, 4-27-98)
10A.5 Qualifications for issuance of permit.
The following qualifications must be met by each applicant for a permit:
(a) No permit shall be issued to any person, firm or corporation except to an organization meeting the following two (2) criteria: (1) it is either a nonprofit entity, a public agency, or an entity affiliated with a public agency, and (2) it is organized primarily to support student or youth activities in Gilroy.
(b) Each such organization must have its principal and permanent meeting place in the Gilroy area, as evidenced by a valid Gilroy zip code; must maintain a bona fide membership of at least twenty (20) members; and must have been organized and established in the Gilroy area for a minimum of one (1) year continuously preceding the filing of the application for the permit.
(c) No organization may receive more than one (1) permit for fireworks sales during any one (1) calendar year. One (1) permit may be issued to two (2) or more qualifying applicants as a joint venture. The maximum number of permits which may be issued during any one (1) calendar year shall not exceed sixteen (16) permits.
(d) Subject to the provisions of subsection (e) of this section, an organization that received a permit to sell fireworks pursuant to this chapter in 2019 shall be issued a permit to sell fireworks in succeeding years if an application is filed and all requirements of this chapter are met. A permit issued under this subsection shall cover only one (1) retail sales stand. Nothing in this section shall prevent the fire chief or his designee from revoking a permit for just cause where a fire nuisance exists or where personal injury is threatened.
(e) Subject to the right of organizations that have continually operated retail stands pursuant to a valid permit since 2019 to continue to do so, provided they meet the requirements of this chapter and of subsection (d) of this section, if the number of proper applications exceeds the number of permits to be issued in a given year, the permits shall be granted by a random drawing supervised by the fire chief.
(f) Each applicant for a permit to sell fireworks pursuant to this chapter shall have submitted prior to the issuance of any permit a policy of individual liability insurance with coverage of at least two million dollars ($2,000,000) and aggregate liability insurance coverage of at least five million dollars ($5,000,000) and naming the City of Gilroy as an additional insured for the period the permit is in effect, or such other types of insurance and limits as may be required from time to time by the city’s risk manager. (Ord. No. 98-9, § 5, 4-27-98; Ord. No. 2019-11, § 1, 11-18-19)
10A.6 Operation of stand.
(a) No entity other than the permittee organization shall operate the stand for which the permit is issued.
(b) Only adults (eighteen (18) years and over) approved by the permittee organization shall sell or otherwise participate in the sale of fireworks at such stand. Persons less than eighteen (18) years old shall not handle or sell fireworks, nor shall they be allowed into the sales booth. Notwithstanding the prohibitions in the last sentence, persons less than eighteen (18) years old may handle fireworks solely for the purpose of loading and unloading fireworks from the stand at the beginning and end of the day, as long as they are supervised by a responsible adult.
(c) No person shall be paid any consideration for selling or otherwise participating in the sale of fireworks at such stand.
(d) Retailers shall not sell fireworks to anyone less than eighteen (18) years of age.
(e) It shall be the responsibility of the seller to provide detached signage. Such signage shall be no less than two (2) feet by four (4) feet in size with lettering not to be less than four (4) inches high. Language used on the sign shall be approved by the chief. The signage shall “notice” buyers that safe and sane fireworks are not allowed in any other city or unincorporated areas of Santa Clara County.
(f) Only boxed assortments packed by a wholesaler or manufacturer shall be sold by the retailer in the original package. Items such as several boxes of sparklers of different colors are not considered a boxed assortment. In no case shall ground blooming flowers or similar items that, when ignited, actively move along the ground in random directions, be included in a boxed assortment.
(g) A safety pamphlet on the use of “safe and sane” fireworks furnished by the manufacturer shall be given by the seller to each purchaser at the time of sale. (Ord. No. 98-9, § 6, 4-27-98)
10A.7 General requirements.
All retail sales of safe and sane fireworks shall be permitted only from within a temporary fireworks stand and sales from any other building or structure is prohibited. Temporary stands shall be subject to the following provisions:
(a) No fireworks stand shall be located within twenty-five (25) feet of any building, nor within one hundred (100) feet of any gasoline pump.
(b) Fireworks stands need not comply with the provisions of the building code provided, however, that all stands shall be erected in a manner that will reasonably insure the safety of attendants and customers.
(c) No stand shall have a floor area in excess of four hundred (400) square feet.
(d) Each stand two hundred (200) square feet or more must have at least two (2) exits.
(e) Each stand shall be provided with two (2) 2 1/2-gallon water pressure type fire extinguishers or one (1) 2 1/2-gallon water pressure type fire extinguisher and one (1) 2A10BC rated dry chemical fire extinguisher in good working order and easily accessible for use in case of fire.
(f) All weeds and combustible material shall be cleared from the location of the stand, including a distance of at least fifty (50) feet surrounding the stand.
(g) “No Smoking” signs shall be prominently displayed on the front, back, and sides of the fireworks stand.
(h) Each stand must have an adult in attendance and in charge while fireworks are stored therein. Sleeping or remaining in stand after close of business each day is forbidden.
(i) The sale of fireworks shall not begin before 9:00 a.m. July 1st and shall not continue after 10:00 p.m. on the 4th of July.
(j) Fireworks booth hours of operation shall be limited to 9:00 a.m. to 10:00 p.m. daily.
(k) All unsold stock shall be removed from the booth each night and shall be stored in a location approved by the fire chief or his designee.
(l) All litter shall be removed from the booth location by 5:00 p.m. on the 5th day of July.
(m) The fireworks stand shall be removed from the temporary location by 8:00 p.m. on the 10th day of July.
(n) Prior to the issuance of a permit, each applicant shall file with the fire chief a cash deposit, certificate of deposit or a surety bond made payable to the city in the amount of one hundred dollars ($100.00) to assure compliance with the provisions of this ordinance. Such deposit, certificate or bond shall be refundable upon compliance with the provisions and requirements of this ordinance, including but not limited to the removal of the stand and the cleaning of the site. In the event the permittee does not so comply or remove the stand or clean the site, in the manner required by the fire chief, the city may do so, or cause the same to be done by other persons, and the reasonable cost thereof shall be a charge against the permittee and his deposit or surety bond. (Ord. No. 98-9, § 7, 4-27-98)
10A.8 Fireworks permit and service fees.
(a) The permit fee for selling fireworks within the city shall be set by council resolution, which may be amended time to time by resolution. That fee must be paid at the time the application for a fireworks stand is filed.
(b) The permit fee for selling fireworks shall also include the city’s fireworks service fee. The fireworks service fee shall be determined each year by the city’s fire and police chiefs and adopted by council resolution. The fireworks service fee shall be paid at the time the application for a fireworks stand is filed. (Ord. No. 98-9, § 8, 4-27-98; Ord. No. 2004-03, § I, 4-5-04)
10A.9 Temporary sales tax permit required.
Organizations selling fireworks are required to obtain a temporary sales tax permit from the State Board of Equalization. (Ord. No. 98-9, § 9, 4-27-98)
10A.10 Display of state license, city permit, sales tax permit, and city required posters.
State license and city permit to sell fireworks, and temporary sales tax permit shall be displayed in a prominent place in the fireworks stand. Additionally, the fire chief may require the display of certain regulatory posters, including but not limited to those described in this chapter. (Ord. No. 98-9, § 10, 4-27-98)
10A.11 Prohibitions on discharge.
(a) No person under eighteen (18) years of age shall light or cause to be lighted any fireworks or other combustible material.
(b) No person shall light or cause to be lighted any fireworks or other combustible material within any stand or within fifty (50) feet thereof.
(c) It shall be unlawful for any person to ignite, explode, project, or otherwise fire or use, or permit the ignition, explosion or projection of any fireworks upon, over, or onto the property of another, or to ignite, explode, project, or otherwise fire or make use of any fireworks within ten (10) feet of any residence, dwelling or other structure.
(d) It shall be unlawful for any person to possess or to ignite, explode, project, or otherwise fire or use, or permit the ignition, explosion or projection of any fireworks upon, over, or onto property in a hazardous fire area. Hazardous fire areas will be determined and defined by the fire chief and set forth in the fireworks discharge policies of the fire department.
(e) It shall be unlawful for any person to ignite, explode, project, or otherwise fire or use, or permit the ignition, explosion or projection of any fireworks from midnight July 5 to midnight June 30.
(f) It shall be unlawful for any person to possess or to ignite, explode, project, or otherwise fire or use, or permit the ignition, explosion or ignition of “dangerous fireworks,” as defined in California Health and Safety Code section 12505, on or at their premises at any time in the City of Gilroy. (Ord. No. 98-9, § 11, 4-27-98; Ord. No. 99-5, 4-19-99; Ord. No. 2006-15, § I, 7-17-06)
10A.12 Storage.
Safe and sane fireworks may be stored within the city, pursuant to the following provisions:
(a) Buildings or parts of buildings used for the storage of safe and sane fireworks shall be classified as Group S, Division 1 occupancies, as provided in the Uniform Building Code, 1994 Edition. Under no condition shall any building or parts of buildings be used that are not provided with an automatic sprinkler system.
(b) Buildings or parts of buildings used for storage shall meet the zoning requirements of the city.
(c) Signs with the wording “Fireworks – No Smoking” in letters a minimum of four (4) inches high, shall be conspicuously located throughout the building.
(d) Fire extinguishers, of the water pressure type, shall be located so there is not more than fifty (50) feet of travel to any fireworks storage.
(e) Stacks of merchandise shall be limited in size to twelve thousand (12,000) cubic feet, and each stack shall be separated from other stacks by eight (8) foot wide aisles. Height limitations shall be consistent with storage practices. (Ord. No. 98-9, § 12, 4-27-98)
10A.13 Noncompliance.
If, in the judgment of the fire chief, fire marshal, duty chief, or other designated officer, the construction of the stand or the conduct of the operations therein do not conform to the provisions of this chapter, such officer may order the stand immediately closed. (Ord. No. 98-9, § 13, 4-27-98)
10A.14 Penalties.
Persons violating this chapter shall be deemed guilty of a misdemeanor, and upon conviction, shall be punished by a fine not to exceed one thousand dollars ($1,000), or by imprisonment in the city or county jail for a period not exceeding thirty (30) days, or both such fine and imprisonment. (Ord. No. 98-9, § 14, 4-27-98; Ord. No. 2018-07, § 1, 5-21-18)
10A.15 Host liability.
(a) The term “host” in this section shall mean the following:
(1) An owner of any private residential or nonresidential real property in the city; or
(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, allows, organizes, supervises, officiates, conducts, or accepts responsibility for a gathering on public or private property.
(4) Any occupant of any private residential or nonresidential real property in the city who hosts, allows, organizes, supervises, officiates, conducts, or accepts responsibility for a gathering on private property that results in a violation of this chapter on the public street adjacent to the occupant’s private real property.
(5) A person need not be present at the property or any such gathering resulting in the response giving rise to the imposition of civil fines or civil fees for response costs. Prior knowledge of the illegal use of fireworks is not a prerequisite to a finding that any specific individual is a responsible host as defined by this section.
(b) The term “strictly liable” in this section shall mean liability for a wrongful act regardless of a person’s intent, knowledge, negligence, or lack thereof in committing the wrongful act.
(c) Any host shall be strictly liable for any unlawful possession, ignition, explosion, discharge, use, evidence of use, or display of any fireworks in violation of this chapter on their property, the public street adjacent to their property, or at their gathering, except that 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 for a violation of this chapter occurring in the common area of the property unless the person hosts, organizes, supervises, officiates, conducts, or accepts responsibility for a gathering at which the violation occurs.
(d) Any person having the care, custody, or control of a minor shall be strictly liable for any unlawful ignition, explosion, discharge, use, or display of fireworks by the minor in violation of this section.
(e) Except as provided in subsection (f) of this section, no host shall permit or allow another person on private property, or at a gathering on public property, where the host knows or reasonably should know that the person is engaged in a violation of this chapter.
(f) The provisions of this section shall not apply to:
(1) Conduct involving display, use, or discharge of fireworks as permitted under federal or state law;
(2) A host who initiates contact with law enforcement or fire officials to assist in removing any person from the property or gathering in order to comply with this chapter, if the request for assistance is made before any other person contacts law enforcement or fire officials to complain about the violation of this chapter.
(g) Penalties for any person cited under this section are exclusively set forth in sections 10A.16 through 10A.18. Section 10A.14 shall not apply to liability arising under the provisions of this section or for violation of this section. (Ord. No. 2022-03, § 2, 4-4-22; Ord. No. 2023-05, § 2, 5-15-23)
10A.16 Administrative penalties.
Any enforcement officer of the city, at his or her discretion, may issue an administrative citation for a violation of section 10A.15. There is no requirement of a first warning in order for the enforcement officer to issue this citation.
(a) Administrative Penalties. A first violation of this section shall result in a citation with a thousand dollar ($1,000) penalty. A second or subsequent violation shall result in a citation with a two thousand dollar ($2,000) penalty.
(b) The police shall give notice of a violation of this section by issuing an administrative citation to any and all persons identified by the enforcement officer within thirty (30) days of the violation. The administrative citation shall also give notice of the right to request an administrative hearing to challenge the validity of the administrative citation and the time for requesting that hearing pursuant to section 10A.18.
(c) The administrative penalty prescribed in subsection (a) of this section is in addition to any administrative cost recovery fee for public safety responses that may be assessed pursuant to section 10A.17.
(d) In the event that the person who is in violation of this section is a juvenile, then the juvenile and the parents or guardians of that juvenile will be jointly and severally liable for the administrative penalty. (Ord. No. 2022-03, § 2, 4-4-22)
10A.17 Administrative cost recovery fees for public safety responses.
(a) In addition to any administrative penalty imposed for violation of section 10A.15, when any violation occurs on private property and an enforcement officer at the scene determines that there is a threat to the public peace, health, safety or general welfare, the public safety officer shall give to the person(s) responsible warning that a second or follow up violation of section 10A.15 on the same date or on any later date will result in his/her/their liability for the cost of providing public safety services (i.e., fire, ambulance, police, and other emergency providers) (hereinafter “administrative cost recovery fees”).
(b) The requirement of a first warning does not limit the ability of the enforcement officer to issue an administrative citation, or for the imposition of administrative cost recovery fees on the same day that the warning is given if the warning does not end the violations. The administrative cost recovery fees shall be separate and distinct from an administrative citation and penalty for a violation described in section 10A.16.
(1) The amount of administrative cost recovery fees includes but is not limited to those costs set forth below, but shall not exceed five hundred dollars ($500.00) per incident;
(2) The portion of the cost of salaries and benefits of law enforcement, fire or other emergency response personnel for the amount of time spent responding to, remaining at, or otherwise dealing with the illegal fireworks use, and the administrative costs attributable to such response(s);
(3) The cost of any medical treatment to or for any law enforcement, fire or other emergency response personnel injured responding to, remaining at or leaving the scene of illegal fireworks use; and
(4) 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 of illegal fireworks use.
(c) In the event that the person who is in violation of this section is a juvenile, then the juvenile and the parents or guardians of that juvenile will be jointly and severally liable for the imposition of administrative cost recovery fees.
(d) Administrative cost recovery fees will not be imposed in those situations where the responsible host calls for emergency services for an actual emergency at the premises. (Ord. No. 2022-03, § 2, 4-4-22)
10A.18 Hearings on the imposition of administrative penalty and/or imposition of administrative cost recovery fees—Appeals.
(a) Any person subject to an administrative penalty pursuant to section 10A.16, or subject to an administrative cost recovery fee pursuant to section 10A.17, shall have the right to request an administrative hearing within thirty (30) days of the issuance of an administrative citation for a violation of section 10A.15 and/or the imposition of administrative cost recovery fees as specified in this chapter, pursuant to sections 6A.11 through 6A.23.
(b) To request such a hearing, the person requesting the hearing shall notify the city clerk in writing within thirty (30) days of the issuance of the administrative citation and/or imposition of administrative cost recovery fees, pursuant to section 6A.16.
(c) The hearing procedure shall be as set forth in section 6A.17.
(d) Any person aggrieved by an administrative decision of the hearing officer may obtain review of the administrative decision by filing a petition for review with the superior court in Santa Clara County in accordance with the time lines and provisions set forth in California Government Code Section 53069.4.
(e) Notwithstanding the provisions of section 6A.20, the amount of an administrative penalty and/or administrative cost recovery fees shall be deemed a debt owed to the city by any person found in violation of section 10A.15 and penalized as identified in section 10A.16 and/or section 10A.17 and, if that person is a juvenile, then also his/her parents or guardians. Any person owing such administrative penalties and/or administrative cost recovery fees shall be liable in an action brought in the name of the city for recovery of such administrative penalty and/or administrative fees. These recovery costs may include reasonable attorney fees incurred in the action. (Ord. No. 2022-03, § 2, 4-4-22)
Prior legislation: Ord. No. 86-24.
Cross references—Fire protection, Ch. 10.