AGENDA
CITY OF EL CENTRO
CITY COUNCIL
TUESDAY, MAY 24, 2022
City Hall Special Meeting 5:00 PM
CITY HALL
COUNCIL CHAMBERS
1275 MAIN STREET
EL CENTRO, CA 92243
City of El Centro Page 1
Notice is hereby given that the Mayor of the City of El Centro has called a Special Meeting of the El Centro City Council to consider the item(s) on this agenda.
Mayor & Council Members may be reached at (760) 336-8989 Mayor: Tomás Oliva City Manager: Marcela Piedra
Mayor Pro-Tem: Martha Cardenas-Singh City Attorney: Elizabeth Martyn Evans Council Members: Edgard Garcia City Clerk: Norma Wyles
Sylvia Marroquin
Cheryl Viegas-Walker
CLOSED SESSION - CONFERENCE ROOM A
ROLL CALL (Open Session)
CLOSED SESSION PUBLIC COMMENT:
Any member of the public wishing to address the City Council on any matter appearing on the closed session may do so at this time. Unless the Mayor extends the time limit, remarks shall be limited to three (3) minutes. Additional opportunities for Public Comments will be given during and at the end of the meeting.
CITY COUNCIL ADJOURNS INTO CLOSED SESSION
CITY COUNCIL CLOSED SESSION
ANTICIPATED LITIGATION
Significant Exposure to Litigation Against the City pursuant to Govt. Code Section 54956.9(d)(2). A point has been reached where, in the opinion of the City Council on the advice of its legal counsel, based on existing facts and circumstances, there is significant exposure to litigation against the City. There is one (1) potential case.
Agenda City Council of the City of El Centro May 24, 2022 City of El Centro Page 2
EXISTING LITIGATION
Upon advice of its legal counsel, the City Council will recess to closed session pursuant to Government Code §54956.9(d)(1) regarding the following litigation against the City - Aaron Reel v. City of El Centro 22 CV526 W KSC.
LABOR NEGOTIATIONS
The City Council will recess to closed session pursuant to Government Code Section 54957.6 to meet with Agency Representatives Marcela Piedra, City Manager, Dulce Bedolla, Human Resources Director and Patrick Clark, Consultant, for the purpose of reviewing the City's position and instructing its representatives regarding matters of salaries, salary schedules, compensation paid in the form of fringe benefits, or, as applicable, other matters dealing with mandatory subjects within the scope of representation pursuant to Government Code Section 3504, negotiating with All Department Heads, All Unrepresented Units, and all Bargaining Units.
RECONVENCE FOR OPEN SESSION
OPEN SESSION
CALL TO ORDER:
ROLL CALL
NEW BUSINESS
1. Draft Fireworks Social Host Ordinance
PRESENTATION: Elizabeth Martyn Evans, City Attorney
RECOMMENDATION:
Provide direction to staff.
LEGISLATIVE ITEM
PUBLIC COMMENTS
Any person wishing to address the City Council on any matter on this agenda, is asked to complete a “Speakers slip” and submit it to the City Clerk prior to the start of the meeting. Unless the Mayor extends the time, there is a three-minute time limit of each public comment. No comments on non-agenda items will be heard at this Special Meeting.
ADJOURNMENT
Agenda City Council of the City of El Centro May 24, 2022 City of El Centro Page 3
Materials related to an item on this Agenda submitted to the City Council after distribution of the agenda packet will be available for public inspection at the Office of the City Clerk, 1275 Main Street, El Centro, California 92243, Monday-Friday during normal business hours.
In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, you should contact the office of the City Clerk at (760)337-4515. Notification at least 48 hours prior to the meeting will enable the City to make reasonable arrangement to assure accessibility to this meeting.
City Council of the City of El Centro Meeting: 05/24/22 05:00 PM 1275 Main Street Department: City Clerk's Office
El Centro, CA 92243 Category: Discussion
Prepared By: Norma Wyles
SCHEDULED Department Head: Norma Wyles
ORDINANCE (ID # 5544) DOC ID: 5544
Draft Fireworks Social Host Ordinance
CITY MANAGER’S RECOMMENDATION:
Provide direction to staff.
FISCAL IMPACT:
None
STRATEGIC PLANNING PROGRAM 2022-2027 RELATION:
Goal #3 - Community Health, Safety & Welfare
DUE DILIGENCE CHECK FOR CONTRACTORS/CONSULTANTS: DID THE
DEPARTMENT VERIFY CURRENT EL CENTRO BUSINESS LICENSE,
CONTRACTORS LICENSE, REFERENCE CHECKS, INSURANCE, ETC:
N/A
BACKGROUND:
Illegal fireworks are those that do not meet the requirements of California, state law, as set out in the City’s fireworks ordinance. In general, no exploding or other firework that leaves the ground is permitted in California. For example, the mortars on a base seen during 4th of July are illegal fireworks. According to the Interim Fire Chief, the safe and sane fireworks allowed in El Centro and sold by local nonprofits are creating not creating the problem; the import of illegal fireworks. Illegal fireworks are those defined as “dangerous fireworks” in the City ordinance, Chapter 10, Article V of the City Code, which currently reads as follows:
Sec. 10-67. - General prohibition against possession, retail sale or use of dangerous fireworks.
No person shall possess, sell, use, display or explode any dangerous fireworks, including, but not limited to, any rocket, firecracker, roman candle, squib, torpedo, wire core sparkler, black cartridge, aerial shell or other combustible device or explosive substance or any kind of fireworks, by whatever name known, within the city.
Unfortunately, enforcement of this provision has been generally ineffective. The problem is that in order to cite a person for using or possessing illegal fireworks, a police officer must actually witness the event. Alternatively, the officer must find a witness that both actually says the suspect set off the illegal firework and is willing to sign a citizens' arrest form. In most cases, parties that call to complain about illegal fireworks can provide law enforcement a general idea about where the fireworks are coming from, but are unable to identify the specific person engaging in the illegal conduct.
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Ordinance (ID # 5544) Meeting of May 24, 2022
At the same time, calls to PD dispatch regarding fireworks have increased:
In 2017, the El Centro Police Department responded to 23 calls for service regarding firework calls.
In 2018, the El Centro Police Department responded to 54 calls for service regarding firework calls.
In 2019, the El Centro Police Department responded to 76 calls for service regarding firework calls.
In 2020, the El Centro Police Department responded to 123 calls for service regarding firework calls.
In 2021, the El Centro Police Department responded to 145 calls for service regarding firework calls.
At the May 17, 2022 City Council meeting, the City Council heard an informational item regarding approaches for dealing with illegal fireworks. The Council asked for an analysis of the Ninth Circuit case regarding enforcement on reservation land of the sale of fireworks illegal under California law. The 1993 case involving the Quechan Tribe, who was sued by the State Fire Marshal to assert criminal violations of California’s illegal fireworks laws. The case remains good law. The Interim Fire Chief has indicated that there is a deputy Fire Marshal located in El Centro. The Fire Chief also is reaching out to federal agencies about enforcement.
DISCUSSION:
As part of the May 17, 2022 presentation, the TNT representative also recommended adoption of a social host ordinance. Such an ordinance makes the property owner legally responsible for conduct on that property. Social host liability has been used by cities for many years to make the owner or person in charge of property liable in the event of alcohol abuse by minors on the property. By imposing social host liability for illegal fireworks, if officers witness illegal fireworks possessed or being discharged from (or near) a particular piece of property, they better will be able to follow up and determine who is in charge of the property and cite that person, rather than trying to somehow identify the particular person who was setting off illegal fireworks. In the Imperial Valley, the City of Brawley adopted such an ordinance last year, and the City of Imperial is in the process of doing so. Were such an ordinance to be adopted, enforcement would be done by both the Police Department and the Fire Department.
The Brawley social host ordinance coupled social host liability with significantly higher administrative fines to try to create a sufficient disincentive to residents to significantly curtail the use of illegal fireworks:
“Notwithstanding anything to the contrary, the amount of an administrative penalty for a violation of Section 10-80 of this Article are:
a. $1,000 for the first violation [increased from $100] b. $2,500 for the second violation within one year of the first violation (increased from $200] and
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Ordinance (ID # 5544) Meeting of May 24, 2022
c. $5,000 for each additional violation within one year of the first violation [increased from $500].”
We have included those increased fines for your review in the revised ordinance. The Police Department is in the process of contacting Brawley to determine the use and success of the ordinance coupled with the fines.
In order to present a final proposed social host ordinance at the June 7, 2022 meeting, a draft is being provided at this special meeting in order to get initial input on the nature and terms of such an ordinance revision. Please provide specific direction on the increased fines.
If you direct us to proceed, the final social host ordinance will be presented as an urgency ordinance at the June 7, 2022 City Council meeting. Given the proximity to the Fourth of July holiday, the ordinance contains a finding that an urgency exists.
Assuming that the ordinance passes by a four-fifths vote, it will take effect immediately upon passage, leave some time to publicize it in order for it to have the anticipated deterrent effect. The ordinance can be publicized on the through the City of El Centro webpage, the City, Fire Department and Police Department social media pages, and through print materials will be available at various City facilities and safe and sane fireworks stands. Additionally, the El Centro Police Department can utilize their portable signs boards that can be moved to different locations within the City.
CONCLUSION:
Provide direction to staff.
ATTACHMENTS:
• EC - fireworks ordinance 5.23 (DOCX)
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00086275.1
ORDINANCE NO. 20-_____
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF EL CENTRO, CALIFORNIA AMENDING CHAPTER 10, ARTICLE V OF THE CODE OF THE CITY OF EL CENTRO ENTITLED _________
THE CITY COUNCIL OF THE CITY OF EL CENTRO, CALIFONRIA, DOES HEREBY ORDAIN AS FOLLOWS:
The City Council finds that the continued use of dangerous or illegal fireworks within the City is an immediate threat to public health, safety and welfare because of the size of such fireworks and the lack of safeguards in their manufacture; and That traditional law enforcement methods are not effective in deterring such use; and That public education and the availability of safe and sane fireworks has not been effective in deterring such use; and
With the Fourth of July approaching, it is urgent and matter of public health and safety to adopt this ordinance, to be effective immediately, to address the use of illegal fireworks.
Section 1. Chapter 10, Article V is amended to read as follows:
(a) Section 10.66 is amended to add the following definitions:
Dangerous fireworks or illegal fireworks shall have the same meaning as set forth in Health and Safety Code §§ 12505 and 12561 and the relevant sections of Title 19, Code of Regulations, subchapter 6 which are hereby incorporated by reference.
Host means the person in charge of private property, including, but not limited to, an owner, tenant, landlord, or property manager of the property; or the person who organizes, supervises, officiates, conducts, controls, or is otherwise in charge of the activity on the property whether or not the Host is present during the activity that is the subject of this Article.
Public right of way means any City property over which the City has granted an easement to another public agency or any property [or any property within the City which is owned by another public agency]
Street means any City street or alley
(b) Section 10.67 is amended to read as follows:
Sec. 10-67. - General prohibition against possession, retail sale or use of dangerous or illegal fireworks.
(a) No person shall possess, sell, use, display or explode any dangerous or illegal fireworks, including, but not limited to, any rocket, firecracker, roman candle, squib, torpedo, wire core sparkler, black cartridge, aerial shell, mortar or other combustible
1.a
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Attachment: EC - fireworks ordinance 5.23 (5544 : Draft Fireworks Social Host Ordinance) 00086275.1
device or explosive substance or any kind of fireworks, by whatever name known, within the city.
(b) The Fire Chief and Police Chief may seize, take, remove or cause to be removed, at the expense of the owner or any vendor, any and all such illegal or dangerous fireworks offered or exposed for sale, stored or held in violation of this Article, the state fireworks law or the California Fire Code.
(c) Sections 10-80 and 10-81 are repealed in its entirety and amended to read as follows and Sections 10.82 – 10.84 are added to read as follows:
Sec. 10.80. - Host’s Liability.
(a) Except as provided in (2) below, no Host shall allow any person to violate a provision of this Article on the Host’s private property, on the public right of way or street adjacent or proximate to the Host’s private property. a. Where there is more than one Host, each Host is liable jointly and severally
(b) Whenever a host is present at the private property while another person violates a provision of this Article, there shall be a rebuttable presumption that the host knew or should have known of the violation.
(c) No Host shall aid or abet another person’s violation of a provision of this Article in a public right of way or street adjacent or proximate to the Host’s private property.
a. A Host aids and abets another person’s violation of a provision of this Article if the Host knows of the other person’s unlawful purpose and then specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the other person’s commission of that violation. (d) The provisions this section shall not apply to:
(a) The possession, manufacture, storage, display, sale, use, or discharge of fireworks as permitted under this Chapter, state or federal law; or (b) A Host who initiates contact with law enforcement or fire officials to assist in removing any person from the property or terminating the activity in order to comply with this Article, if the request for assistance is made before any other person contacts law enforcement or fire officials to complain about the violation of this Article
Sec. 10-81. - Violation—Penalties.
(a) In addition to any other remedy allowed by law, any person who violates a provision of this Article is subject to criminal sanctions, civil actions, and administrative penalties pursuant to Chapter of this City Code. All remedies prescribed under this Article are
1.a
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Attachment: EC - fireworks ordinance 5.23 (5544 : Draft Fireworks Social Host Ordinance) 00086275.1
cumulative and the election of one or more remedies does not bar the city from the pursuit of any other remedy available to the City.
(b) All violations of this Article are declared to be a public nuisance. (c) Notwithstanding anything to the contrary , the amount of an administrative penalty for a violation of Section 10-80 of this Article are:
a. $1,000 for the first violation;
b. $2,500 for the second violation within one year of the first violation; and c. $5,000 for each additional violation within one year of the first violation.
Sections 10.82. – Liability for Response Costs
(a) In addition to any administrative penalty under Section 10.81 or any other section of this City Code or state law, any Host who violates this Article is liable for the response costs relating to the violation. As used here, “response costs” include the cost of disposal of dangerous or illegal fireworks.
a. Where there is more than one Host, each Host is liable jointly and severally.
b. Such Host the same incident are jointly and severally liable for the response costs relating to the violation.
(b) The amount of response costs constitutes a debt owed to the City which may be collected in any manner legally available to the City.
(c) Notice of the response costs shall contain the following information:
1. The name of the host who is liable for the response costs;
2. The address of the private property where the incident occurred;
3. The date and time of the response;
4. The law enforcement, fire, or other emergency response personnel who responded; and
5. An itemized list of the response costs.
(a) Notice shall be served on each Host at the property address by first-class mail or any means provided for service of a civil complaint
(d) Payment for response costs shall be remitted to the City within 30 calendar days of the date of the notice.
1.a
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Attachment: EC - fireworks ordinance 5.23 (5544 : Draft Fireworks Social Host Ordinance) 00086275.1
(e) The payment of any such costs shall be stayed upon the filing of a timely appeal under Section 10.83
10.83. – Appeal of Charge for Response Costs
Any Host charged with response costs may, without a fee and within 10 calendar days of the date of the notice of response costs, appeal the response costs to the City Manager. The City Manager shall meet with the Host(s) within 15 calendar days of filing the appeal. Within the next 30 calendar days, the City Manager shall determine whether or not to uphold the appeal.
The decision of the City Manager is final.
(a) Failure to timely file an appeal constitutes a failure to exhaust available administrative remedies, and bars any further review or administrative appeal of the response costs.
10.4 – Public Nuisance.
Violations of this Article are hereby declared to be a public nuisance.
Section 2: Effective Date: This ordinance is an urgency ordinance necessary to protect public health, safety and welfare that must be put into place in advance of the upcoming 4th of July holiday. This ordinance shall be effective immediately after its adoption and the City Clerk shall cause a certified copy of this ordinance or a summary of it to be published one time within fifteen (15) days after its adoption in the Imperial Valley Press, a newspaper of general circulation printed in Imperial County and circulated in the City.
APPROVED, PASSED AND ADOPTED by a 4/ths vote at a regular meeting of the City Council.
1.a
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Attachment: EC - fireworks ordinance 5.23 (5544 : Draft Fireworks Social Host Ordinance)