HomeMy WebLinkAboutOrdinance 2727 N.C.S. 05/18/20201
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EFFECTIVE DATE
OF ORDINANCE
June 18, 2020
Introduced by
Kevin McDonnell
ORDINANCE NO. 2727 N.C.S.
Seconded by
Kathy Miller
AN ORDINANCE OF THE CITY OF PETALUMA, CALIFORNIA, ADDING A NEW CHAPTER 10.65
TO THE PETALUMA MUNICIPAL CODE ENTITLED "FIREWORKS HOST ORDINANCE" MAKING PROPERTY
OWNERS AND OTHERS IN POSSESSION OR CONTROL OF PRIVATE PROPERTY IN THE CITY LIABLE FOR
UNLAWFUL USE OF FIREWORKS AND FIREWORKS GATHERINGS ON THE PROPERTY
WHEREAS, for over a decade the City of Petaluma has allowed sales and use of consumer
fireworks, also known as "safe and sane fireworks," for the 4th of July Holiday; and
WHEREAS, despite the Petaluma Fire Department's multi -step program which includes
Education, consisting of social media campaigns, speaking engagements, information in City
newsletters and on the City website, and other available media, Engineering, consisting of
regulations strictly regulating fireworks sales and use to state -approved fireworks, and permitting
fireworks use only on July 41h, and Enforcement, consisting of enforcement surrounding the 4th of July
holiday, ("3 E's Efforts"), the City has continued to experience an increase in calls for service and
illegal fireworks usage during the 4th of July Holiday, straining available law enforcement and fire
prevention and enforcement resources, causing the City to incur significant clean-up costs each
year, and creating risks for the public health, safety and welfare; and
WHEREAS, notwithstanding the Fire Department's 3 E's Efforts, recent 4th of July Holidays have
resulted more than two hundred calls for service each year related to fireworks; and
WHEREAS, many of the 4th of July fireworks complaints received in the City in recent years
have involved people using illegal fireworks in their backyards, creating enforcement challenges for
law enforcement, and City law enforcement personnel have also encountered enforcement
challenges regarding unlawful fireworks use resulting from people using safe and sane -type fireworks
to mask the use of illegal fireworks, people using police scanners to monitor where enforcement
teams are traveling and scattering upon enforcement team arrival, people withdrawing into
garages after unlawful fireworks use in driveways, people firing mortar -type aerial rockets from their
backyards, and people hosting large fireworks parties in the street, making access and enforcement
difficult; and
WHEREAS, in response to the ongoing public safety response demands, clean-up costs and
health and safety risks from fireworks use in the City, on March 16th, 2020 the Petaluma City Council
adopted Ordinance No. 2723 N.C.S., amending Section 17.20.070 of the Petaluma Municipal Code
to add Section 5608.2 to Part 9 of Chapter 56 of the 2019 California Fire Code as adopted by the
City as a local amendment pursuant to Section 50022.2 of the Government Code; and
Ordinance No. 2727 N.C.S.
1 WHEREAS, Section 5608.2 as adopted prohibits the possession, storage, offering or exposing
2 for sale, sale at retail, gifting or giving away, use, explosion, discharge, or disposal in any manner of
3 fireworks within the City; and
4
5 WHEREAS, it is anticipated that as a result of the fireworks ban adopted pursuant to Section
6 5608.2, Petaluma law enforcement officials will continue to face enforcement challenges such as
7 they have traditionally experienced, requiring additional enforcement tools to prevent unlawful
8 fireworks use and fireworks gatherings on private property in the City; and
9 WHEREAS, Section 15061(b) (3) of Title 14 of the California Code of Regulations applies to
10 exempt this ordinance from the requirements of the California Environmental Quality Act ("CEQA")
11 because it can be seen with certainty that there is no possibility that the ordinance will have a
12 significant negative effect on the environment, and on the separate but related ground that the
13 ordinance is an action of the City to assure the maintenance, restoration, enhancement, or
14 protection of the environment where the regulatory process involves procedures for protection of
15 the environment in accordance with Section 15308 of the CEQA Guidelines, since the prohibition
16 contained in this ordinance against property owners and others permitting use of fireworks on
17 property they own or control constitutes regulatory procedures for protection of the environment in
18 accordance with Section 15308 of the CEQA Guidelines and because the ordinance provisions will
19 reduce the negative environmental impacts of use of fireworks in the City, which negative
20 environmental impacts may include noise, smoke, discharge and release of toxic chemicals, toxic
21 fireworks waste and fireworks -caused fires;
22 NOW, THEREFORE, be it ordained by the Council of the City of Petaluma as follows:
23 SECTION 1. Recitals Made Findings
24 The above recitals are hereby declared to be true and correct and are incorporated into this
25 ordinance as findings of the City Council.
26 SECTION 2. Environmental Review
27 This ordinance is exempt from environmental review under the CEQ pursuant to Section 15061(b) (3)
28 of Title 14 of the California Code of Regulations because it can be seen with certainty that there is
29 no possibility that the ordinance will have a significant negative effect on the environment, and on
30 the separate but related ground that the ordinance is an action of the City to assure the
31 maintenance, restoration, enhancement, or protection of the environment where the regulatory
32 process involves procedures for protection of the environment in accordance with Section 15308 of
33 the CEQA Guidelines. The prohibition contained in this ordinance against property owners and
34 others permitting use of fireworks on property they own or control constitutes regulatory procedures
35 for protection of the environment in accordance with Section 15308 of the CEQA Guidelines
36 because the ordinance provisions will reduce the negative environmental impacts of use of
37 fireworks in the City.
38 SECTION 3. New Chapter 10.65 Added
39 A new Chapter 10.65, entitled "Fireworks Host Ordinance," is hereby added to the Petaluma
40 Municipal Code, to read as follows:
41 10.65.010 Title.
42 This chapter is entitled and shall be known as the "Fireworks Host Ordinance."
Ordinance No. 2727 N.C.S. Page 2
1 10.65.020 Findings, intent and purpose.
2 A. The city council of the city of Petaluma, pursuant to the city's police powers under Article XI,
3 Sections 3 and 5 of the California Constitution, and the City Charter established pursuant to such
4 sections, has the authority to enact and enforce laws that promote the public health, safety and
5 general welfare of its residents. The use of fireworks in violation of Section 17.20.070 of this code,
6 and in particular Section 5608.2, which is one of the local amendments to Chapter 56 of Part 9 of
7 the 2019 California Fire Code as amended by Section 17.20.070, is potentially harmful to the
8 persons involved and a threat to public health and safety, quiet enjoyment of residential
9 property and the general welfare. Persons in Petaluma may unlawfully use fireworks at private
10 residences or at rented residential and commercial premises and attend fireworks gatherings at
11 such premises that are under the control of a person who knows, or should know, of the unlawful
12 use of fireworks at the premises.
13 B. The city council finds that persons having possession or control of property may be
14 responsible for unlawful fireworks use on private property and for fireworks gatherings on that
15 property and/or may fail to ensure that fireworks are not used on such property and in such
16 gatherings. The city council further finds that problems associated with unlawful fireworks use
17 and fireworks gatherings are difficult to prevent and deter unless peace officers and code
18 enforcement officers in the Petaluma Police Department and in the Fire Prevention Division of
19 the Petaluma Fire Department have the legal authority to direct hosts to cease unlawful
20 fireworks use and to disperse fireworks gatherings and to cite the responsible persons.
21 C. Law enforcement personnel have in the past been required to respond to unlawful fireworks
22 use on private property and gatherings on private property at which fireworks were being used
23 unlawfully. Law enforcement personnel have also received multiple service calls in the same
24 calendar year and/or successive calendar years concerning such use and such gatherings at
25 the same property. Such calls for service result in a disproportionate expenditure of public safety
26 resources and delay official responses to other calls for service in the rest of the city.
27 D. An ordinance that imposes liability on property owners and other responsible persons for
28 unlawful use of fireworks and fireworks gatherings on the property is necessary to deter and
29 prevent such use and such gatherings. Persons who actively and passively aid, allow, or tolerate
30 such use and such gatherings should be held liable for permitting such violations of the law and
31 threats to the public health, safety and welfare, the nuisances created by them and the costs
32 associated with responding to them.
33 E. The purposes of this chapter include: protecting the public health, safety and welfare by
34 deterring unlawful fireworks use, and the health and safety risks such use creates, and reducing
35 the costs to the public of providing law enforcement response services to unlawful fireworks use,
36 both in terms of monetary costs and availability of law enforcement personnel for other calls.
37 These purposes are implemented by the imposition of criminal penalties for fireworks hosts as well
38 as the imposition of administrative penalties for fireworks hosts and landowners (including
Ordinance No. 2727 N.C.S. Page 3
1 landlords) and others in control of private property and the imposition of fees to recover the
2 costs incurred by the city in providing law enforcement responses to private property where
3 fireworks are used unlawfully and fireworks gatherings occur at properties where previous such
4 use and/or gatherings have required law enforcement responses.
5 F. For these reasons, the Petaluma city council declares that unlawful fireworks use and fireworks
6 gatherings on private property are a threat to the public peace, health, safety and general
7 welfare, and a public nuisance as they affect at the same time the entire Petaluma community
8 as well as the neighborhoods in which they occur.
9 10.65.030 Definitions.
10 For the purposes of this chapter, the following definitions shall apply:
11 A. "City" means the city of Petaluma.
12 B. "Juvenile" means any person under eighteen years of age.
13 C. "Response costs" means the costs associated with responses by law enforcement and first
14 responders to private properties where fireworks are being used in violation of this code,
15 including but not limited to:
16 1. Salaries and benefits of law enforcement and first responder personnel for the amount of time
17 spent responding to, remaining at, or otherwise dealing with reports of unlawful fireworks use,
18 and the administrative costs attributable to such response(s);
19 2. The cost of any medical treatment to or for any law enforcement and first responder
20 personnel injured responding to, remaining at or leaving the scene of unlawful fireworks use;
21 3. The cost of repairing any city equipment or property damage, and the cost of the use of any
22 such equipment, in responding to, remaining at or leaving the scene of where fireworks are
23 being used unlawfully; and
24 4. Any costs recoverable in accordance with California Civil Code Section 1714.9.
25 D. "Responsible person" means a person or persons with a right of possession of the residence or
26 other private property in the city at which unlawful fireworks use may occur, including, but not
27 limited to, the following:
28 1. Any owner of the residence or other private property, meaning the record owner of the title
29 to property as of the time of the unlawful fireworks use, wheresoever that person or entity may
30 currently reside;
31 2. A tenant or lessee of the residence or other private property;
Ordinance No. 2727 N.C.S. Page 4
1 3. The persons) exercising control over the residence or other private property at the time of the
2 unlawful fireworks use; and
3 4. The person(s) who organizes, supervises, officiates, conducts or controls the unlawful fireworks
4 use or any other person(s) accepting responsibility for such use. A responsible person for unlawful
5 fireworks use need not be present at such use.
6 E. "Fireworks gathering" means a party or gathering of two or more persons at a residence or
7 other private property in the city at which unlawful fireworks use is occurring when that party or
8 gathering is being conducted in such a manner as to constitute a substantial disturbance of the
9 quiet enjoyment of private or public property in a significant segment of a neighborhood, as a
10 result of conduct constituting a violation of this chapter. Such conduct constituting a violation of
11 law for purposes of this definition includes, but is not limited to unlawful fireworks use, and
12 unlawful fireworks use coupled with excessive noise, excessive traffic, obstruction of public
13 streets by crowds or vehicles, or other disturbances of the peace, vandalism, littering, and any
14 other conduct that constitutes a threat to public health, safety, quiet enjoyment of residential
15 property or general welfare.
16 10.65.040 Duty of responsible persons.
17 It is the duty of responsible persons to not knowingly host, permit, or allow unlawful fireworks use
18 and/or fireworks gatherings at a residence or other private property in the city concerning which
19 the responsible person has a right of possession specified in Section 10.65.030(D) and to take all
20 reasonable steps to prevent such unlawful fireworks use and/or gatherings at such residence or
21 other private property. Reasonable steps required pursuant to this section include, but are not
22 limited to: not providing access to or permitting use of fireworks at the property or a fireworks
23 gathering; and supervising the activities of persons and gatherings at the property.
24 10.65.050 Fireworks use and fireworks gatherings on private property unlawful.
25 It is unlawful and a public nuisance for any responsible persons to knowingly host, permit, or
26 allow fireworks use and/or fireworks gatherings to occur at private property in the city
27 concerning which the responsible person has a right of possession specified in Section
28 10.65.030(D) in violation of this chapter. For purposes of this chapter, a responsible person
29 knowingly hosts, permits or allows fireworks use or a fireworks gathering to occur in violation of
30 this chapter whenever the responsible person is aware a person has used or is using fireworks
31 unlawfully at the property or a fireworks gathering is occurring at the property or the responsible
32 person reasonably should have been aware a person has used or is using fireworks unlawfully at
33 the property or a fireworks gathering is occurring at the property, had the responsible person
34 taken all reasonable steps to prevent such violations of this chapter in accordance with Section
35 10.65.040. Violation of this section by any responsible person is subject to the criminal, civil and/or
36 administrative penalties set forth in this chapter in addition to recovery of response costs in
37 accordance with Section 10.65.110, and any other applicable penalties under applicable law. It
Ordinance No. 2727 N.C.S. Page 5
1 shall be prima facie evidence that the responsible person knew or should have known of both
2 the unlawful fireworks use and/ or the fireworks gathering if the responsible person is present on
3 the property at any point during the use or gathering. To the full extent permitted by law, owners
4 of properties as defined in Section 10.65.030(D) (1) shall remain responsible persons liable for
5 violations of this chapter on such property regardless of any contract or agreement regarding
6 the property that purports to provide otherwise.
7 10.65.060 Exception.
8 Owners, lessees and persons exercising control over private property in the city shall not be
9 deemed responsible parties liable for violations of Section 10.65.050 in accordance with this
10 chapter if such owners, lessees, or persons exercising control over private property can
11 demonstrate that at the time of a violation of Section 10.65.050 on the property, the property
12 was rented or leased to another person, the owner, lessee, or person exercising control over the
13 property was not present during the violation, and had no prior knowledge that the violation
14 would occur or knowledge that the violation was occurring.
15 10.65.070 Fireworks use and hosting by juveniles.
16 In the event that a juvenile uses fireworks unlawfully or hosts a fireworks gathering at a residence
17 or other private property in the city in violation of this chapter, the parents or guardians of that
18 juvenile will be jointly and severally liable for any penalties and response costs imposed pursuant
19 to this chapter.
20 10.65.080 Criminal enforcement and penalties for violations.
21 Violations of this chapter may be prosecuted as misdemeanors punishable by a fine of not more
22 than one thousand dollars or by imprisonment for a period not to exceed six months, or by both
23 fine and imprisonment. At the discretion of the charging officer and/or city attorney, violations of
24 this chapter may also be charged as infractions as defined in Section 19(c) of the California
25 Penal Code. Violations charged as infractions shall not be subject to imprisonment and shall be
26 subject to a fine not exceeding five hundred dollars for each offense. If a peace officer or code
27 enforcement officer elects to charge a violation of this chapter as a criminal violation, such
28 officer shall issue a criminal citation with a notice to appear, signed by the alleged violator.
29 Alternatively, the city attorney may prosecute violations of this chapter by filing a criminal
30 complaint.
31 10.65.090 Civil and administrative enforcement and penalties for violations.
32 Violations of this chapter are declared to be public nuisances. Violations of this chapter may be
33 prosecuted as a nuisance and enforced by a civil court action as provided in Chapter 1.13 or
34 via administrative enforcement as a nuisance as provided in Chapter 1.14. Notwithstanding any
35 other provisions of this chapter, whenever the existence or continuance of any violation of this
36 chapter or any nuisance condition poses an imminent or immediate threat of harm to persons or
Ordinance No. 2727 N.C.S. Page 6
I property, or to public health, welfare or safety, such violation or condition may be summarily
2 abated in accordance with Section 1.15.010. Each and every day during any portion of which a
3 nuisance condition exists or continues may be deemed a separate and distinct violation for
4 purposes of setting the amount of penalty to be imposed. Any penalty imposed will accrue on a
5 daily basis from the date the penalty becomes effective.
6 10.65.100 Alternative remedies provided.
7 In addition to the other remedies specified in this chapter, violations of this chapter are subject
8 to the enforcement remedies in Chapters 1.10 through 1.12 and 1.15. In addition, the city
9 expressly reserves the right to utilize enforcement remedies available under any applicable state
10 or federal statute or pursuant to any other lawful power of the city. All such remedies shall be
11 alternative to or in addition to or in conjunction with, and not exclusive of, one another. The
12 election of remedies shall be at the sole discretion of the city.
13 10.65.110 Recovery of response costs.
14 When a peace officer or officers or code enforcement officer makes an initial response to a
15 residence or other private property within the city where unlawful fireworks use or a fireworks
16 gathering is occurring in violation of this chapter and issues a citation for violation of this chapter,
17 the officer shall, in writing, inform any responsible person(s) at the property that:
18 A. The unlawful fireworks use or a fireworks gathering is in violation of this chapter; and
19 B. The responsible person(s) may be charged for any response costs incurred for subsequent
20 responses to the property for unlawful fireworks use or a fireworks gathering in violation of this
21 chapter within a twelve-month period.
22 This warning will be given to all identified responsible persons at the time of the first response to
23 unlawful fireworks use or a fireworks gathering in violation of this chapter where a citation is
24 issued for violation of this chapter before assessing response costs pursuant to this section for
25 subsequent responses within a twelve-month period following issuance of the citation. Within
26 thirty calendar days of the initial citation, an additional written warning shall be transmitted via
27 certified mail to the record owner of the residence or private property as shown in the records of
28 the Sonoma County Assessor's office.
29 When a peace officer or code enforcement officer responds to unlawful fireworks use or a
30 fireworks gathering in violation of this chapter at a residence or other private property within the
31 city within twelve months of a citation and warning given to responsible person(s) at the same
32 property, and an officer issues a second or subsequent citation pursuant to this chapter, all
33 responsible persons shall be jointly and severally liable for the city's response costs concerning
34 such second or subsequent unlawful fireworks use or a fireworks gathering exists in violation of
35 this chapter, but only to the extent that such responsible person(s) concerning the first citation at
Ordinance No. 2727 N.C.S. Page 7
1 such property remain responsible person(s) for the second or subsequent citation at such
2 property.
3 10.65.120 Imposition of liens or special assessments.
4 Any administrative penalty imposed for violation of this chapter, including any administrative
5 penalties pursuant to other codes or statutes to which violations of this chapter are subject, and
6 any administrative costs or other expenses of enforcement, response costs as defined in this
7 chapter, and the cost or expenses associated with the abatement of a nuisance condition
8 pursuant to this chapter, may be enforced by the recordation of a lien or special assessment on
9 the real property where the violation occurred in accordance with and subject to the
10 requirements of Section 1.14.140.
11 10.16.130 Authority to enforcement chapter.
12 City peace officers, including members of the Petaluma Police Department and members of the
13 Petaluma Fire Department Fire Prevention Bureau, and City code enforcement officers, who
14 have the discretionary duty to enforce a statute or ordinance, may arrest a person without a
15 warrant pursuant to Penal Code Section 836.5 and other applicable law, based on reasonable
16 cause to believe the person has committed a violation of this chapter in their presence, and
17 otherwise enforce violations of this chapter in accordance with the provisions of this chapter
18 and applicable law.
19 10.65.140 Appeal of administrative enforcement.
20 A responsible person charged with violation of this chapter pursuant to Chapter 1.14 shall be
21 entitled to pursue the appeal procedures set forth in Section 1. 14.070 for responsible persons
22 named in notices of violations.
23 10.65.150 No mandatory duty of care.
24 This chapter is not intended to impose, and shall not be construed or given effect in a manner
25 that imposes upon the city, or any officer, employee, agent, or representative of the city, a
26 mandatory duty of care toward persons or property within or without the city limits, so as to
27 provide a basis of civil liability for damages, except as may otherwise be imposed by law.
28 SECTION 4. Severability
29 The City Council hereby declares that every section, paragraph, sentence, clause, and phrase of
30 this ordinance is severable. If any section, paragraph, sentence, clause or phrase of this ordinance is
31 for any reason found to be invalid or unconstitutional, such invalidity, or unconstitutionality shall not
32 affect the validity or constitutionality of the remaining sections, paragraphs, sentences, clauses, or
33 phrases.
34
Ordinance No. 2727 N.C.S. Page 8
1 SECTION 5. Effective Date.
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This ordinance shall be in full force and effective 30 days after its adoption and shall be published
and/or posted in the manner required by the City's charter
INTRODUCED and ordered posted this 4th day of May 2020.
ADOPTED this 18th day of May 2020 by the following vote:
Ayes: Mayor Barrett, Vice Mayor Fischer, Healy, Kearney, King, McDonnell, Miller
Noes:
None
Abstain:
None
Absent:
None
ATTEST:
r
Claire Cooper, CMC, City Clerk
Teresa Barrett, Mayor
APPROVED AS TO FORM:
,.
Eric Danly, City Attorney
Ordinance No. 2727 N.C.S. Page 9