City of Gonzales
CITY ATTORNEY
STAFF REPORT
TO: Honorable Mayor Rios and City Council
DATE: May 6, 2024
FROM: Michael Rodriquez, City Attorney
THROUGH: Carmen Gil, City Manager
SUBJECT: Introduce and Waive Reading, with Reading by Title Only of Ordinance No. 2024-144 Amending Chapter 5.40 “Fireworks” of Title 5-Public Health and Safety, of the Gonzales City Code
RECOMMENDATION
Introduce and waive reading, with reading by title only of Ordinance No. 2024-144, An Ordinance of the City Council of the City of Gonzales Amending Chapter 5.40 “Fireworks” of Title 5-Public Health and Safety, of the Gonzales City Code.
BACKGROUND
The City’s existing fireworks code provisions, found at Chapter 5.40, Title 5-Public Health and Safety of the City Code, are fairly minimal. They focus primarily on the permitting and sale of legal fireworks (safe and sane) and not on use prohibitions.
Enforcement of municipal code provisions concerning fireworks remains difficult throughout the State because officers are rarely able to catch individuals in the act of using illegal fireworks, or conversely, so many individuals are using illegal fireworks at any given time that selection for citation issuance is completely overwhelming, arguably arbitrary, and as a practical matter, ineffective. Additionally, it is clear that the City’s residents associate the celebration of the Independence Day holiday with firework displays and use, with a significant number of individuals willing to break local and state laws as a means of carrying out what appears to be a time honored and well-loved tradition.
Despite the best efforts of the police department, including the issuance of citations and the confiscation of illegal fireworks, the use of illegal fireworks in the City remains largely unabated. Last year illegal fireworks were in use and on display everywhere in the City well past 12:00 a.m., animals were frightened by bright lights and loud noises, and debris associated with firework use was disseminated AGENDA
ITEM
14 throughout the City. More importantly, the City had a house fire and fatality that may have been the result of the use of fireworks. (The City had a similar house fire without injury the year before.) Earlier this year the City Council formed a Fireworks Committee comprised of five citizens to discuss and make recommendations on a plan to address illegal fireworks in the City. The Committee met twice, on March 12 and April 2, and made a number of recommendations including:
1. Update the City Code to include language that:
• Establishes a 10:30pm curfew on fireworks;
• Adds provisions potentially holding a landlord responsible for violation of fireworks sections of the City Code; and
• Consider establishing an administrative procedure for citation purposes that would allow enhanced fines.
2. Establish a messaging campaign from the Fire Department, the Police Department and youth on problems associated with legal and illegal fireworks use and the effects on animals and veterans.
REVIEW & ANALYSIS
As the Fireworks Committee has discussed, there are a number of regulatory options available for controlling the use of fireworks in the City. However, the success of such options must be tempered by the reality that the City’s ability to control firework possession and use is constrained by the limited number of enforcement officers at the City’s disposal when compared to the number of individuals willing to violate the fireworks laws. Simply stated, if there is a continued willingness by a majority of the City’s citizens to break the laws concerning fireworks use, the City lacks a sufficient number of officers to issue citations or otherwise control illegal firework activity. Moreover, potential expenses associated with prosecuting Code violations may be cost prohibitive.
Available options are as follows:
1. Ban the sale and use of all fireworks, including safe-and-sane fireworks, in the City. The advantage of this option is it would be easier to identify illegal conduct in the City around the time of and up to Independence Day. Officers would be able to issue citations for the possession and/or use of any fireworks. The downside is the sale of safe-and-sane fireworks is a key component of the fundraising activities of a number of organizations in the City. Additionally, safe-and-sane fireworks would continue to be available for purchase in neighboring cities. The Committee did not recommend this option.
2. Modify the current Code. Most regulatory efforts focus on time and place restrictions on the use of fireworks and the imposition of appropriate penalties for Code violations. In order to address the growing problem of fireworks misuse, a city can add provisions specifying the time period in which safe-and-sane fireworks can be sold and used in the City (limited by date and time, i.e., a curfew), allowing the City to recover for “response costs” as defined in the Code when police and/or public safety employees are required to respond to a call concerning the possession, storage or discharge of fireworks, and specific fines to allow enforcement of code provisions via infraction citations (within the limits allowed by law).
As a matter of practice, the Council has avoided misdemeanor citations, which entitle a party to a jury trial, on the grounds that such enforcement efforts are cost prohibitive.
While such changes may be helpful, the City’s inability to effectively enforce its Code, due to staff, time, and cost restraints, will continue to be a significant impediment to controlling firework use. The City doesn’t have any realistic means by which to increase the number of enforcement officers out on the streets on and around Independence Day, and as such, only a small fraction of violators can be cited. The Police Department may be able to use drones to capture violations, but such use has been met with mixed results in the courts. Notwithstanding, drones will assist the City in identifying locations at which fireworks are being used so officers can be dispatched to given locations and will also provide assistance in identifying and responding to fires in the City and coordinating suppression efforts.
Some cities have also adopted fees imposed on non-profits that sell fireworks in the City to help offset administrative costs and the costs of enforcement and fire prevention. The City of Gilroy has successfully established and collected such fees, and the City could follow the Gilroy model. Fees of this type could be used to pay for new enforcement efforts and programs.
Finally, the City may impose “host liability” fines on homeowners for fireworks violations. Suggested new Code provisions would be similar to those currently in place in City Code Chapter 5.68 for Social Host Accountability for alcohol, whereby home and property owners would be subject to fines for Code violations and held liable for the City’s response costs in providing police, fire and medical responses to incidents involving the illegal use of fireworks. Under this enforcement scheme, the emphasis is on property owners as opposed to individual violators as the point of control of illegal fireworks use.
Provisions of this type are in place in a few cities, like Gilroy and San Diego. As of the current date, Staff is unaware of how successful these provisions have been.
The Committee recommended the addition of new provisions clearly identifying legal and illegal fireworks, declaring illegal fireworks use a public nuisance, and allowing for cost recovery from property owners for responses related to illegal fireworks use. Staff concurs with this recommendation and proposed Code amendments are set forth in the ordinance attached to this Staff report.
3. Comprehensive administrative enforcement scheme. The City could commence the process for establishing a comprehensive administrative enforcement scheme for fireworks. Provisions of the Health and Safety and Government Codes allow cities to set up an administrative enforcement process to encourage and obtain compliance with fireworks restrictions. Such programs address the imposition, enforcement, collection, and administrative review of all fines related to the possession, use, storage, sale and/or display of fireworks classified as “dangerous fireworks” in the Health and Safety Code. They also allow for controls on the use of safe-and-sane fireworks. Citations would be processed on an administrative basis by a local hearing officer, with appeal rights to the City Council, the imposition of fines in excess of those authorized for infractions, and the imposition of administrative fees necessary to contract with the State for the safe handling and disposal of confiscated fireworks. For example, the “Model Administrative Fine Ordinance” for firework violations prepared by the State establishes administrative fines at $1,000 for the first offense, $2,000 for the second offense, and $3,000 for the third offense. Penalties are also allowed for late payment of these fines. A portion of all fines goes to the State for costs associated with handling and disposing of illegal fireworks.
Prior to implementation of an administrative enforcement scheme, Staff would want to explore the success rate of such programs. Moreover, the City currently does not have a process in place to handle a large number of administrative hearings and/or appeals, and as such, would need some time to develop appropriate administrative procedures and related staffing. Due consideration would have to be given as to whether the City Council’s current agendas could reasonably handle citation appeals or whether special meetings would be necessary for such hearings. The Committee recommended consideration of the establishment of an administrative enforcement process. Staff believes that further analysis of the cost of implementation of such a scheme, as well as the effectiveness of such procedures, should be explored before considering establishing an administrative enforcement process in the City Code. Staff is looking for Council direction on this issue.
4. Education. The Committee has identified an educational campaign as a possible way of gaining compliance with fireworks prohibitions. Chief Wise notes that the City has distributed flyers and posted videos on illegal firework use for years with negligible impact. That being said, there may be some value in stepping up the City’s efforts on a variety of social media platforms to warn the public of the dangers of illegal fireworks and potential penalties for violation of City provisions. Positive messages, such as alternatives to fireworks use and places where people can go to enjoy holiday activities and fireworks displays are also suggested. It is worth noting that educational efforts do not require Council approval or formal adoption and can be commenced immediately. The Committee recommended an educational outreach be initiated and staff concurs.
Staff has prepared an ordinance to amend the City Code based on the recommendations set forth above.
If the Council desires, Ordinance No. 2024-144 may be introduced and read by title only this evening.
How Recommendation Supports the Vision
Gonzales will continue to be a safe, clean, family-friendly community, diverse in its heritage, and committed to working collaboratively to preserve and retain its small town charm.
Explain: Adoption of new Code provisions regulating the use of fireworks in the City will help maintain public safety.
Explain how the Recommendation Directly Implements the Mission The City Council and Staff of the City of Gonzales will realize our Vision by providing the leadership, commitment and resources necessary to provide excellent services that enhance the quality of life of our diverse community. X Yes ___No N/A
Explain: See above.
City services will be delivered in a cost-effective, respectful and friendly manner to insure the safety and well being of the residents and the promotion of business, recreational, housing and employment opportunities in an environmentally sustainable manner. Yes __ No X N/A
Explain: See above.
Strong fiscal policies allow us to provide appropriate infrastructure for:
• Public Safety X Yes ____ No N/A
• Housing Yes ____ No X N/A
• Recreation Yes ____ No X N/A
• Environment Yes ____ No X N/A
• Education Yes ____ No X N/A
Explain: N/A.
ALTERNATIVES
• Consider introduction and waiver of reading of Ordinance No. 2024-144 which implements many of the recommendations made by the City’s Fireworks Committee. • Provide staff with direction on the preparation of a modified form of Ordinance No. 2024-144 either adding new provisions or striking some of the proposed additions. Note that delays in adoption of Code changes will in all likelihood result in approved changes that will not be enforceable during the Independence Day holiday in 2024. • Take no action at this time and provide staff with direction.
BUDGET IMPACT
N/A.
CONCLUSION
Based on ongoing concerns about the effects of illegal fireworks in the City, it is recommended that the Council introduce and waive reading, with reading by title only of Ordinance No. 2024-144, An Ordinance of the City Council of the City of Gonzales Amending Chapter 5.40 “Fireworks” of Title 5- Public Health and Safety, of the Gonzales City Code.
Attachments:
1. Ordinance No. 2024-144
2. City Code - Fireworks