Agenda, regular meeting — San Bruno City Council, May 14, 2024

SAN BRUNO CITY COUNCIL REGULAR MEETING
May 14, 2024

Public Comment

2 Consider Adoption of a Resolution Providing a One-
time Reduction of the Fireworks Stand
Permit Cost Recovery Fee from 100 Percent to 85 Percent of City Costs Incurred in the 2023
Independence Day Holiday and Waive Collection of the Non- refundable Application Fee for All Previous Years
Our Client: American Promotional Events, Inc. (dba TNT Fireworks) Position:

Postponing Council’s Decision Pending Results of the CPRA Request and the Opinion of the City Attorney and the City’s Chief Financial Officer

Dear Mayor Medina and Councilmembers,
As you may know, since 1989 Revell Communications has served as the public relations/public affairs representative for American Promotional Events, Inc. (TNT Fireworks), the state’s leading wholesale distributor of State Fire Marshal-Approved Fireworks. We assist TNT Fireworks with its community liaison activities as well as with the development and implementation of both local and statewide Fireworks Safety & Education Programs that it coordinates and/or underwrites in conjunction with local and state fire departments and law enforcement agencies. We also assist our client as well as the State of California and many local communities with the collection, tabulation and analysis of local fire and injury data as it relates to illegal, state- approved and
unknown fireworks and act as a resource library for those same entities on emerging enforcement and public education techniques throughout the country as we all battle with the growing menacing problem of illegal fireworks. (For further general information please click this link “If You Are Not Part of the Solution, You Are Part of the Problem!!”).

On May 6, 2024, we submitted the below request to the City of San Bruno pursuant to the California Public Records Act (CPRA) and the Ralph M. Brown Act (Brown Act). We tendered this records request on behalf of our client (TNT Fireworks) as well as Phantom Fireworks and the 12 San Bruno Nonprofit organizations who are their retail partners in the interest of providing the San Bruno City Council and the constituents it represents, along with the San Bruno nonprofit organizations and their members who would like to continue to sell State- Approved Fireworks each 4th of July as a way of funding their critical programs in their community, with as complete and accurate assessment of the situation as possible.

Prior to explaining our request that the City Council postpone its decision on staff’s recommendation, I would first like to set the scene that San Bruno, and every other community in California, is faced with right now.

WHAT IS THE PROBLEM?
For days on end for the months leading up to this last 4th of July and other holidays, Californians are being treated to a cacophony of booms, bangs and amateur illegal aerial fireworks displays. Local fire and law enforcement agencies who are kept busy responding nightly to residents’ complaints about these illegal aerial displays and celebratory explosives, continue to assert it was one of the most prolonged and intense periods of illegal, intermittent neighborhood bombardments they had ever witnessed. While no community was immune 3 from these insane illegal displays this year, the rampant use of illegal fireworks was particularly crazy in communities where no fireworks are allowed.

So many California communities have been experiencing an annual, growing, rampant use of illegal fireworks, because until recently, little or nothing was being done to stop the interdiction of these illegal, dangerous items into California. As a result, local jurisdictions have become not only the “first line of defense”, but the “only line of defense” against illegal fireworks!
Communities throughout the state are being confronted with the scope of an illegal fireworks problem that requires a level of enforcement personnel that their budgets and police and fire departments cannot support.

For the better part of the last two decades, there has been no border integrity or inspections for illegal fireworks like there used to be. As a result, there are both hordes of individual criminal entrepreneurs as well as large commercial operations smuggling these dangerous, illegal fireworks into the state without fear of being caught or suffering any criminal consequences.

WHO IS THE SOURCE OF MOST OF THESE ILLEGAL FIREWORKS?
Currently, there are six fireworks stores in Southern Nevada in the city of Pahrump and seven stores immediately northeast of Reno. These stores sell the full range of federally-approved fireworks that are illegal in California. Most informed estimates suggest that these thirteen stores account for at least 65 to 75 percent of the illegal fireworks used in California. One of these stores (Area 51 Fireworks), according to press reports and prosecutorial records, was the retailer for the illegal fireworks, found or involved in the massive explosions and busts in Ontario and the City of Los Angeles in 2021.

The California resident defendant in the Los Angeles case, testified in court that he made up to five trips over a nine day period in a large rental truck to the Area 51 Fireworks’ store in Pahrump and purchased massive amounts of illegal fireworks by the carton, loaded them into his rental truck and brought them back to Los Angeles where he stored them at his residence along with handmade explosives he claimed he bought from someone in AREA 51 Fireworks’ parking lot.

It is the universal general policy of most, if not all, of these stores to:
 Require the purchaser to show their driver’s license which the store scans and downloads.  Require the purchaser to buy a “Shooter’s Permit” and say they are going to take these fireworks to a place out in the middle of nowhere to use them or sign a form that states they will not use these fireworks in the town where they were purchased and will only take them somewhere where their possession and use are legal. and
 Require the purchaser to state that they are buying these fireworks for personal use only.

Area 51 Fireworks had to know that the defendant in the Los Angeles incident was violating California criminal statutes and regulations by buying massive quantities of fireworks illegal in California and bringing them back into California. Given the volumes purchased and the frequency of those purchases over just nine days, AREA 51 Fireworks was on actual notice that these fireworks were not for personal use but for resale in a location where they were illegal to possess, use or sell without a proper California license from the State Fire Marshal.

The reality is, the only reason to have a fireworks store in Pahrump, NV is to sell illegal fireworks to California residents. Otherwise, it would mean that every man, woman, and child in this highly remote desert town of 38,390 people, immediately adjacent to the California border, would each have to buy thousands of dollars of fireworks that by Nye County ordinance says they are not allowed to set off in Pahrump.

Lest you doubt these rough sales dollars estimates, in a letter to the Chair and Members of the Nevada Senate Committee on Government Affairs, dated 3/28/21, from Douglas Burda, CEO of Red Apple Fireworks in Pahrump, Mr. Burda stated the following:
4 “We, on average, pay nearly $1,000,000 a year in state and local taxes and fees.” The state and local tax rate in Pahrump, NV is 7.6%! That would mean, by Mr. Burda’s own admission, “on average”, the Red Apple Fireworks store in Pahrump sold almost $14 million of fireworks every year and it’s safe to assume the vast amount of those annual sales were knowingly made to California residents.

And that’s only one store out of thirteen.

I respectfully urge you to check out the attached flyer titled: “What Happens in Nevada----Should Stay in Nevada!!!!”. Use the links or QR codes on this flyer to look at the U.S. Attorney’s records and the defendant’s testimony in the incident that resulted in the destruction of the Los Angeles Police Department’s Bomb Containment Vehicle and 17 homes and businesses in 2021. View the You Tube video posted by one of the thousands of California residents who regularly go to these Nevada stores and buy illegal fireworks by the carton, not by the individual item, and bring them back into California!

SO, WHAT CAN BE DONE TO ATTACK THIS PROBLEM? ------ AB 1403 (Dem- Garcia) ??

I helped draft AB 1403. When it was introduced, among other things, it was designed to address the growing crisis of the illegal importation and sales of dangerous, illegal fireworks into California and how the Office of the State Fire Marshal (OSFM), local jurisdictions, and California licensed Safe and Sane Fireworks wholesalers are trying to put a stop to this growing menace. Regrettably, because consultants for the two policy committees in the State Assembly lacked confidence in the state’s ability to tackle the illegal fireworks problem, they forced the removal of many of the bill’s components that would have provided the financial resources for the state to begin to tackle the problem. The balance of AB 1403, which included increasing illegal fireworks violator fine levels for large volumes of illegal fireworks and a cap on the fees a local jurisdiction could charge its nonprofit state-approved fireworks retailers, became law on January 1, 2024.

WHY IS STATE ACTION NEEDED?

The California Department of Justice and the State Fire Marshal stopping the bulk sales of illegal fireworks to California residents at their source is a more proactive and effective approach to addressing the issue in local communities across California. By focusing on the out-of-state sources of these illegal fireworks, state officials can work to disrupt the supply chain of illegal fireworks and prevent them from ever reaching communities like San Bruno in the first place. Relying solely on local fire and law enforcement agencies to contain the use of illegal fireworks is a reactive approach that everyone acknowledges is not sufficient to address the scale and scope of the problem.

Most recently, we have requested that the California State Fire Marshal initiate discussions with the California Department of Justice, the Governor’s Office of Emergency Services, the California Fire Chiefs Association and the Fire Districts Association of California, and the undersigned on behalf of TNT Fireworks, to explore an Interstate Compact or an Interstate Agreement between California and Nevada requiring all Nevada Fireworks Retail Store brick and mortar locations to contemporaneously download their records, into a secure website controlled by the State of Nevada, of all sales made to and the items purchase by any individual presenting a valid state ID with a resident address location where the products purchased are not allowed to be possessed or used. The compact or agreement between the two states should make the State of Nevada’ website accessible to any fire and/or law enforcement agency in the State of Nevada or California and ATF and US DOT. 5 I am providing the above background as a preface to outlining our position because the City Council needs to understand that, unless and until the state and/or federal authorities do something to stop the supply chain of illegal fireworks into California, San Bruno’s local enforcement costs are going to continue to climb exponentially each year.

While for the last two decades San Bruno nonprofits have proudly and willingly come to the rescue of the city’s budget by funding dedicated extra police and fire personnel on San Bruno’s streets, they now fear that they are being asked to cover expenses beyond those that have any nexus to their retail sale of State Fire Marshal- Approved Fireworks.

The nonprofits are also concerned that, while recognizing that relying solely on San Bruno fire and law enforcement agencies to contain the use of illegal fireworks is a reactive approach that everyone acknowledges is not sufficient to address the scale and scope of the problem, the city may not be utilizing all the legal and operational tools at its disposal to fine all illegal fireworks violators and make these violators pay their share of the enforcements costs they have made necessary in San Bruno.

So why are we asking that the “City Council Postpone Its Decision Pending Results of the CPRA Request and the Opinion of the City Attorney and the City’s Chief Financial Officer?”

 What costs have the nonprofits been covering and how many of those costs would the city still incur if the nonprofits could no longer sell State Fire Marshal-Approved Safe and Sane Fireworks?

As is stated in the staff report on this agenda item, until recently, city staff have not provided the nonprofits a detailed breakdown of the costs incurred when the cost recovery fee invoices have been sent and still have not provided the nonprofits any documentation that prove that the nonprofits are being billed only for costs that the city would incur as a result of their fireworks fundraiser.

As is set forth below in their below CPRA request and in my letter to the City attorney on April 22, 2024, there are certain legal guardrails (Proposition 26, the Sinclair Paint case and Sheetz vs County of El Dorado) that limit what costs the city could pass on to the nonprofits through the year 2023. For 2024, the newly enacted California Health and Safety Code Section 12635.5 further codifies what expenses can be levied on the nonprofits and sets a cap on those costs of 7% of their respective gross sales.

As the staff report sets forth, in 2005, the San Bruno voters approved Measure G reaffirming Municipal Code Chapter 6.50. As is shown in the screenshot of Measure G below, this ballot measure (see Section

6.50.080), and the then City Attorney’s Impartial Analysis of the measure (see its first two paragraphs), also put guardrails on what changes to San Bruno’s fireworks ordinance the City Council would be authorized to make moving forward.

6 While one could argue that the city passing Resolution No. 2008-67, Resolution No. 2023-105 and/or on almost $100,000 of costs to the nonprofits exceeds the City Council’s authority under Measure G, the nonprofits are currently not making that argument.

Instead, they are simply asking that for 2023, the limitations of Proposition 26, the Sinclair Paint case and Sheetz vs County of El Dorado be applied to those costs; and for 2024, moving forward, that the limitations of California Health and Safety Code Section 12635.5 be applied. To do that, they feel both the City Council and the nonprofits need to see the records that City staff produces in response to their CPRA request and then determine from those records:

 What nexus do those costs have to the nonprofits’ sale of state-approved fireworks? More simply, if State Fire Marshal-Approved, Safe and Sane Fireworks were not allowed tomorrow in San Bruno, would San Bruno still incur the expenses it wants to pass onto the nonprofits and if not, then why not?

 Is the City of San Bruno utilizing all the legal and operational tools at its disposal to fine all illegal fireworks violators and make these violators pay their share of the enforcements costs they have made necessary in San Bruno?

7  What can the City of San Bruno do in the interim, until state or federal action is taken, to impact the supply chain of illegal fireworks into California?

OPTIONS FOR SAN BRUNO TO CONSIDER THAT ARE PERMITED UNDER MEASURE G

 Improve the weak Fireworks Social Host Ordinance (FSHO) that the City Council adopted on October 24, 2023.

Both fire and police representatives will tell you that while the discharge of illegal fireworks can be tied to a particular residence or property, it is often difficult to tell who at the residence or property discharged the illegal fireworks. The owner or tenant of the premises is often in the best position to control and knows or should know of the possession, manufacture, storage, sale, handling and/or use of illegal fireworks on his/her property. Many of the jurisdictions who have adopted social hosts ordinances have concluded that those persons who have possession or control of private property where dangerous illegal fireworks are being stored, sold, or used, have failed to ensure that this activity is not taking place on their property.

In addition, many police and fire agencies are reluctant to send their personnel into an environment, particularly in the case of only one or two officers on the scene, that would pose a serious threat to that officer’s safety given the participants in the illegal activity and the violator’s level of intoxication or other impaired behavior. Thus, the ability to cite the “Responsible Person” without subjecting that officer to potential threat or harm, is a preferable, safer response to handling the situation. (See Rationale for Social Host Ordinance in attached “Illegal Fireworks—Recreation—OR---Wreckreation?”).

Jurisdictions that have chosen to adopt less than detailed FSHO, similar to San Bruno’s, have experienced difficulty in prevailing on the citations when the individuals cited appeal. At a minimum, San Bruno’s FSHO should include making it unequivocally cle ar that violations of the
City’s fireworks laws are based in strict liability and require no intent element to be liable. This clarification will help the public better understand these laws, assist judges with their proper application in court.

Since any proposed regular ordinance amendment, if adopted, would not take effect at best until mid-
July 2024, missing the upcoming Fourth of July celebration, it is recommended that the City Council also adopt an Urgency Ordinance – which would take effect immediately – to protect public health and safety leading up to and during the holiday.

We maintain an online resource library of staff reports and ordinances that we would gladly make available to the City Attorney to facilitate a rapid improvement of the San Bruno FSHO in time for this Fourth of July.

 Utilize “stacking” of administrative citations for illegal fireworks possession or use.

We would further recommend that San Bruno employ a citation practice that is commonly referred to as “stacking” for illegal fireworks violations that occur in the city. This would permit the city to treat the lighting or possession of each individual illegal firework as a separate violation rather than collectively citing all ignitions or illegal items as one violation. Salinas does this very effectively. In 2023, without any police department involvement in its illegal fireworks enforcement effort, Salinas
issued 110 citations at $1,250 per violation for a total citation amount 8 of $322,500 and the largest single citation of $37,500. The best analogy for this is, if a criminal suspect has barricaded himself in a house and five police officers approach the house and the suspect shoots in the direction of each of the five officers, the suspect would be charged with at least five separate attempts to kill or injure each officer.

 Allow the police, code enforcement, and/or fire departments to charge an illegal fireworks violator the actual costs for responding to a call for an illegal firework violation in addition to the administrative fine amounts.

It is critical that San Bruno amend its ordinance to include a provision that allows the City to recover the actual costs of its illegal fireworks enforcement efforts from the illegal fireworks violators as well as any costs associated with the collection, transportation and/or disposal of the violator’s seized illegal fireworks that are not covered by the State of California. Some jurisdictions have also chosen to issue additional “noise violation citations” in addition to the ones for possession or use when the use of the illegal fireworks has been during the early morning hours protected by their noise ordinance. Typically, the minimum cost recovery amount begins at $250 in addition to the administrative fine amount, for each violation.

 Supplement San Bruno’s illegal fireworks FSHO patrols with individuals who could perform the required duties at a lower cost.

San Bruno could greatly increase the number of citations it issues and impact its illegal fireworks use if it implements an improved Fireworks Social Host Ordinance (FSHO) by deploying unmarked patrols consisting of a combination of “trained” City employees, CERT volunteers (Community Emergency Response Team), Code Enforcement personnel, and/or fire inspectors equipped with 4K, night vision binocular cameras ( https://www.amazon.com/Hiacinto-Night- Vision-Binoculars-
Infrared/dp/B0BKRQ3WBR/ref=sr_1_1?keywords=hiacinto+night+vision+4K+binocular+came ra&sr=8-1 ) [Sacramento City Fire Dept. uses these $150 night vision cameras] to document Fireworks Social Host Ordinance violations pursuant written policies on how to file a citation request, the necessary documentation for a citation, and how these individuals must conduct themselves in order to not put themselves or others at risk.

Keep in mind, contrary to what the Power Point presentation that is part of the staff report says, a FSHO does not require that the violation be committed in the presence of an officer. Third party reporting, that properly documents a FSHO violation, are sufficient grounds to issue a citation to a “Responsible Person” under a properly written FSHO. An administrative citation needs only proof of just enough evidence to make it more likely than not that the illegal fireworks violation the city claims occurred is true. (See Rationale for Social Host Ordinance in attached “Illegal Fireworks—Recreation—OR---Wreckreation?”).

I would welcome the opportunity to speak with you about the above recommendations before this evening’s City Council meeting and answer any questions you have.

Very Truly Yours,

10 Alex McIntyre
City Manager
San Bruno – City Hall
567 El Camino Real
San Bruno, CA 94066

Nick Pegueros
Chief Financial Officer
San Bruno – City Hall
567 El Camino Real
San Bruno, CA 94066

Lupita Huerta
City Clerk
San Bruno – City Hall
567 El Camino Real
San Bruno, CA 94066

Trisha Ortiz
City Attorney
San Bruno – City Hall
567 El Camino Real
San Bruno, CA 94066

RE: Our Client: American Promotional Events, Inc. (TNT Fireworks), Phantom Fireworks, and the 12 San Bruno Nonprofits Organizations Who Are Their Retail Partners

SUBJECT: Request for Summaries, Correspondence, Notes, Emails, Financial Records, Text Messages, Staff Reports and Other Administrative Records that relate to the “Fee”, “Cost Recovery Fee”, and “Cost Recovery Fee Calculation” levied in the years 2008 through 2023, inclusive, pursuant to Exhibit A attached hereto (San Bruno City 11 Council Resolution No. 2008-67 dated June 24, 2008) and Exhibit B (San Bruno City Council Resolution No. 2023-105 dated September 26, 2023) and the City’s Power Point Presentation during its Zoom call on Wednesday, May 1, 2024, with San Bruno nonprofit organizations regarding “Fireworks Stand Permit Cost Recovery”, and Projected New Costs which the City will seek full reimbursement moving forward; Pursuant to the California Public Records Act (CPRA) and the Ralph M.

Brown Act (Brown Act)

Ladies and Gentlemen:

As you may know, since 1989 Revell Communications has served as the public relations/public affairs representative for American Promotional Events, Inc. (TNT Fireworks), the state’s leading wholesale distributor of State Fire Marshal-Approved Fireworks. We assist TNT Fireworks with its community liaison activities as well as with the development and implementation of both local and statewide Fireworks Safety & Education Programs that it coordinates and/or underwrites in conjunction with local and state fire departments and law enforcement agencies. We also assist our client as well as the State of California and many local communities with the collection, tabulation and analysis of local fire and injury data as it relates to illegal, state-approved, and unknown fireworks and act as a resource library for those same entities on emerging enforcement and public education techniques throughout the country as we all battle with the growing menacing problem of illegal fireworks. (For further general information please see “If You Are Not Part of the Solution, You Are Part of the Problem!!”).

On or before April 22, 2024, the City of San Bruno noticed an agenda for a City Council meeting to be held on Tuesday, April 23, 2024. That agenda stated that the City Council would “Hold Public Hearing and Adopt a Resolution Approving an Update to the User Fee Schedule for the Fiscal Year 2024-25”. A component of that new proposed fee schedule was the following:

At 9:39 PM on Monday, April 22, 2024, I sent an email to San Bruno City Attorney Trisha Ortiz wherein I stated the following:

“I’m not sure if I’m misreading this and was hoping you could add some clarity to the situation rather than me having to raise it during the public hearing.
12 Under the provisions of Proposition 26 and the decision in the Sinclair Paint case, a jurisdiction must be able to demonstrate, through a preponderance of the evidence, that a charge is reasonable. A charge is reasonable if it does not exceed the necessary cost of the governmental activity and if the cost allocated to the payer bears a fair or reasonable relationship to the payer’s burden or benefits. The simplest primary test I always suggest a jurisdiction should apply is, “If State Fire Marshal-Approved, Safe and Sane Fireworks were not allowed tomorrow in your jurisdiction, would you still incur the expense you want to pass onto the nonprofits?” If the jurisdiction would still incur it, then, at a minimum, it’s highly questionable as to whether you can pass it on to the nonprofits. Assuming it clears this primary test hurdle, then the question becomes, “Is the expense reasonable?”, i.e., you can’t go out and pay an expensive Hollywood celebrity to appear in a fireworks public service announcement (PSA) and then pass that actor’s fees, production costs, and airtime costs for that PSA onto the nonprofits.

As I shared with Ashlee in our phone call, by virtue of AB 1403 which I helped draft and was signed into law effective January 1, 2024, the limitations imposed by Proposition 26 and the Sinclair Paint case have been further codified in a new Section 12635.5 of the California Health and Safety Code:

SECTION 12635.5.
(a) A charter city, city, county, fire protection district, or city and county that adopts an ordinance or resolution pursuant to Section 12599 may, through adoption of an ordinance or resolution by the governing body, require each applicant receiving a permit to pay a fee to the charter city, city, county, fire protection district, or city and county of a pro rata portion of the actual and reasonable costs the charter city, city, county, fire protection district, or city and county incurs that is related to any of the following:
(1) Processing and issuing permits.
(2) Inspection of fireworks stands.
(3) Public education and awareness campaigns regarding the safe and responsible use of safe and sane fireworks, and the dangers and risks posed by the use of illegal fireworks. (4) Enforcing the provisions of the code of the charter city, city, county, fire protection district, or city and county with respect to the sale and use of safe and sane fireworks, including extra personnel time and cleanup of the fireworks trash and debris. “Extra personnel time” means employee or contracted employee time that the charter city, city, county, fire protection district, or city and county would not otherwise incur but for the sale and use of safe and sane fireworks.
(5) Fire operation and suppression efforts that are directly related to safe and sane fireworks.
(b) The pro rata share of the costs shall be specified in the ordinance or resolution and calculated using gross sales as shown on each permittee’s sales and use tax return for the applicable period.

The pro rata share of costs shall not exceed 7 percent of the gross sales of the fireworks sold in the charter city, city, county, fire protection district, or city and county during the applicable period.

A cost recovery ordinance or resolution in effect on or before January 1, 2024, may supersede this subdivision.

13 Just as before the enactment of AB 1403, a jurisdiction now levying all their costs, or an amount equal to a flat 7 percent of the nonprofits’ gross sales, without a “cost bill” that details out costs that meet both the “reasonable” and “legally levied” st andards, would not be sustained by a court and indeed may be ruled as an attempt to impose a “tax” on the nonprofits without an affirmative approval of said tax by the voters of that jurisdiction.

On Friday, April 12, 2024, the United States Supreme Court, in a unanimous 9-0 decision in the Sheetz v. County of El Dorado case (https://www.supremecourt.gov/opinions/23pdf/22-1074_bqmd.pdf), ruled against exorbitant government fees in a case that centered on one California retiree forced to pay a flat- rate $23,000 “traffic impact fee” for the construction of a single small home to raise his grandson in.

This ruling combined earlier rulings on government permitting fees, which must both have “essential nexus” — related to the government interest for having the fee — and be “roughly proportional” to the impact for the action the fee is targeting, with the addition that fees created by legislatures are not exempt from these requirements.

The Supreme Court posted guardrails on those impact fees just as Proposition 26, the Sinclair Paint case and AB 1403 have placed guardrails on the fees that a jurisdiction can levy on its nonprofit organizations selling State Fire Marshal-Approved, Safe and Sane Fireworks. The Sheetz v. County of El Dorado decision establishes legal principles or standards regarding the reasonableness of government fees and the burden of proof required to justify such fees. The decision emphasizes the importance of clear documentation and evidence to substantiate fees. The court in Sheetz v. County of El Dorado places a high burden on the government to demonstrate the reasonableness and legality of the fees. The decision emphasizes the need for fees to be directly related to the services provided or the costs incurred by the government.

I share all of the above with you in the hopes of gaining some clarity on what is really taking place. As you can see from the attached “Application for Fireworks Stand Permit” it would appear that last year, what in the staff report is now being called a “Fireworks Stand Safety Clearance” fee (without a definition as to what that fee covers or means), was previously called the “Application Fee”. The nonprofits that partner with our client have said that over the last 5 years, they have paid the City additional surcharge sums from a low of $37,620 to a high of $52,725 per year without a “cost bill” detailing what specific services it covered and whether it met the reasonable and legal standards outlined above.

Obviously under the new Section 12635.5 of the California Health and Safety Code, the “Application Fee” and the “Fireworks Stand Safety Clearance” fee must be included in the 7% cap, and any attempt to levy a fee equal to a flat 7% of the nonprofits’ gross sales, without a “cost bill” that details out costs that meet both the “reasonable” and “legally levied” standards, would not be sustained by a court and indeed may be ruled as an attempt to impose a “tax” on the nonprofits without an affirmative approval of
said tax by the voters of the City of San Bruno.”

On Tuesday, April 24, 2024, I was invited to join San Bruno CFO Nick Pegueros and City Attorney Trisha Ortiz on a phone call to discuss City staff’s Fee Schedule proposal to City Council. During that phone call it was explained that the City had been mislabeling a fee that went to the fire department which was nonrefundable as an “Application Fee” when in fact it was not. When I raised the above legal guardrails mentioned in my email to Ms. Ortiz the night before, she stated that she believed that the City Council’s 14 Resolutions No. 2008-67 and No. 2023-105 superseded the 7% cap restriction in the newly enacted Section 12635.5 of the California Health and Safety Code because these resolutions constitute “A cost recovery ordinance or resolution in effect on or before January 1, 2024,…” as set forth in Subsection (b) of Section 12635.5.

I stated that while I do not concur with her interpretation, the City’s cost recovery fee could not escape the scrutiny and limitations imposed by Proposition 26, the Sinclair Paint case and the Sheetz v. County of El Dorado unanimous Supreme Court decision. Ms. Ortiz reluctantly agreed that those still apply to the City’s cost recovery fee.

It is our understanding that Mr. Pegueros intends on presenting a proposal to the City Council on May 14, 2024, wherein the City would do a one-time reduction in its collective cost recovery fee by 15%., leading to a reduction of the alleged 2023 costs from $99,153 to a new reduced amount of $84,280.

In the interest of providing the San Bruno City Council and the constituents it represents, along with the San Bruno nonprofit organizations and their members who would like to continue to sell State-Approved Fireworks each 4th of July as a way of funding their critical programs in their community, with as complete and accurate assessment of the situation as possible; the purpose of this correspondence is to respectfully request that all of the departments of and for the City of San Bruno and their employees and/or agents, and, most particularly, the individuals to whom this records request is addressed to, pursuant to the California Public Records Act (CPRA) (California Government Code Section 6250, et seq.); the Ralph M. Brown Act (Brown Act) (California Government Code Section 54950, et seq.); and all other relevant local and state statutes and regulations, provide us an opportunity to inspect and/or copy all of the following documents and materials:

Preface: In responding to Request 1 through Request 20 below, inclusive, please be advised that the individuals to whom this Records Request is addressed as well as your department, agency and/or staff members are being requested to produce any and all records, reports, notations, memoranda, internal memos, interoffice memoranda, directives, papers, documents, e-mails, social media, photographs, text messages, electronic messages, instant messages, books, letters, notes, typed materials, memorandum of telephone conversations, multi-media presentations, Power Point Presentations, Zoom or other webinar video footage or audio recordings/transcriptions/notes, raw video footage, reports, records, and any and all other writings, records and/or correspondence rela ting
to the requests listed below. These materials should include, without limitation, unless exempt by an express provision of law, all file copies prepared in connection with such writings, in written, electronic or any other form, whether used or not. For the purposes of the following 20 requests, the term “Records” shall include, but not be limited to, all of the above.

SECTION ONE

15 Subject: The subject matter of this request seeks to identify information contained in, relied upon and/or include or excluded from the content and/or implementation of Resolution No. 2008-67 attached at Exhibit A from the point leading up to its adoption in 2008 through and including the date of your final response to this “Records” request.

Request #1: Copies of any and all iterations of Resolution No. 2008-67 attached hereto at Exhibit A as well as all summaries, reports, memoranda, emails, text messages, correspondence and/or “Records” maintained by, or originating from the Office of City Manager, Deputy City Manager, City Attorney, Finance Department, Public Works Department, San Bruno Police Department and/or San Bruno Fire Department which delineate and/or discuss how the respective departments track and allocate expenses and/or staff time in order to arrive at their respective fee calculations mandated by this resolution as well as what supporting documentation would have to be submitted to the nonprofit fireworks retailers with those expenses and/or time allocations.

Request #2: For Resolution No. 2008-67 or any similar resolution before or after that which is attached hereto at Exhibit A, please provide any summaries, reports, memoranda, emails, text messages, correspondence and/or “Records” instructing departments, staff and/or contract entities on any legal or administrative limitations on what they should and can legally allocate as expenses to be billed to the nonprofit fireworks retailers and still be consistent with the Sinclair Paint case and/or Proposition 26 and/or the Sheetz v. County of El Dorado unanimous Supreme Court decision.

Request #3: Section 4 of Resolution No. 2008-67 states that “A non- refundable application fee established by
resolution of the city council shall accompany every application for a permit. In addition to the application fee and any other required fees, each applicant receiving a permit shall be required to pay, each year, to the city a pro rata portion of the costs incurred by the city for fireworks public education, enforcement of the requirements of San Bruno Municipal Code Chapter 6.50 and this resolution, and fireworks clean-up. The pro rata share of the costs shall be determined using gross sales as shown on each permittee’s Sales and Use Tax Return for the applicable period. Copies of each permittee’s Return shall be submitted to the City no later than September 30 following July 4 of the same year.” (See Exhibit A attached hereto). Please provide any summaries, reports, memoranda, emails, text messages, correspondence, guidelines, mandates and/or “Records” instructing departments, staff and/or contract entities on the definition of the phrase “…the costs incurred by the city for fireworks public education, enforcement of the requirements of San Bruno Municipal Code Chapter 6.50 and this resolution, and fireworks clean-up.” and how it should be applied to determining what costs and expenses should be allocated to the nonprofit groups pursuant to Section 4 of Resolution No. 2008-67. Please provide this information beginning with the year 2008 moving forward to and including your final response to this “Records” request.

Request #4: Please provide copies of all of the City’s “Cost Recovery Invoices”, “Fireworks Cost Recovery Billing” issued, along with supporting documentation that accompanied them, for each of the San Bruno nonprofit organizations for the years 2008 through 2023, inclusive. 16 SECTION TWO

Subject: The subject matter of this request seeks to identify information contained in, relied upon and/or include or excluded from the content and/or implementation of Resolution No. 2023-105 attached at Exhibit B from the point leading up to its adoption in 2023 through and including the date of your final response to this “Records” request.

Request #5: Copies of any and all iterations of Resolution No. 2023-105 attached hereto at Exhibit B as well as all summaries, reports, memoranda, emails, text messages, correspondence and/or “Records” maintained by, or originating from the Office of City Manager, Deputy City Manager, City Attorney, Finance Department, Public Works Department, San Bruno Police Department and/or San Bruno Fire Department which delineate and/or discuss how the respective departments track and allocate expenses and/or staff time in order to arrive at their respective fee calculations mandated by this resolution as well as what supporting documentation would have to be submitted to the nonprofit fireworks retailers with those expenses and/or time allocations.

Request #6: For Resolution No. 2023-105 or any similar resolution before or after that which is attached hereto at Exhibit B, please provide any summaries, reports, memoranda, emails, text messages, correspondence and/or “Records” instructing departments, staff and/or contract entities on any legal or administrative limitations on what they should and can legally allocate as expenses to be billed to the nonprofit fireworks retailers and still be consistent with the Sinclair Paint case and/or Proposition 26 and/or the Sheetz v. County of El Dorado unanimous Supreme Court decision.

Request #7: “Section 4 Cost Recovery Fee” of Resolution No. 2023-105 states that, “A non-refundable application fee established by resolution of the city council shall accompany every application for a permit. In addition to the application fee and any other required fees, each applicant receiving a permit shall be required to pay, each year, to the city a pro rata portion of the costs incurred by the city for fireworks public education, enforcement of the requirements of San Bruno Municipal Code Chapter 6.50 and this resolution, fire prevention, fire suppression, and fireworks clean-up. The pro rata share of the costs shall be determined using gross sales as shown on each permittee’s Sales and Use Tax Return for the applicable period. Copies of each permittee’s Return shall be submitted to the City no later than September 30 following July 4 of the same year (See Exhibit A attached hereto). Please provide any summaries, reports, memoranda, emails, text messages, correspondence, guidelines, mandates and/or “Records” on why the words “fire prevention” and “fire suppression” were added and at whose request or recommendation as well as “Records” instructing departments, staff and/or contract entities on the definition of the phrase “…the costs incurred by the city for fireworks public education, enforcement of the requirements of San Bruno Municipal Code Chapter 6.50 and this resolution, fire prevention, fire suppression, and fireworks clean-up.” and how it should be applied to 17 determining what costs and expenses should be allocated to the nonprofit groups pursuant to Section 4 of Resolution No. 2008-67. Please provide this information beginning with the year 2023 moving forward to and including your final response to this “Records” request.

SECTION THREE

Subject: The subject matter of this request is to identify information relied on and/or included or excluded from the City’s “Cost Recovery Invoices”, “Fireworks Cost Recovery Billing” issued to the San Bruno nonprofit organizations for the years 2008 through 2023, inclusive. Please provide financial documents and documentation, including, but not limited to, income statements, general ledgers (meaning a report showing all transactions that occurred over a specific period of time), executed contracts for services, invoices, purchase orders any and all other “Records” that show how each department’s expenditures and/or staff time related to the amount that was billed to each nonprofit group was arrived at. If any of these expenses were for personnel and services that were other than those exclusively dedicated to safe and sane fireworks, please indicate what those expenses or services were, and their relevant detail of time spent on services other than those dedicated to safe and sane fireworks.

Request #8: All “Records” that were collected, gathered, and/or obtained that were reviewed and relied upon and/or used, in whole or in part, in developing the City’s “Cost Recovery Invoices”, “Fireworks Cost Recovery Billing” issued to the San Bruno nonprofit organizations for the years 2008 through 2023, inclusive.

Request #9: All “Records” that were collected, gathered, and/or obtained that were reviewed but not relied upon and were excluded from use or inclusion, in whole or in part, to produce the City’s 2022 “Cost Recovery Invoices”, “Fireworks Cost Recovery Billing” issued to the San Bruno nonprofit
organizations.
.

Request #10: Section 4 of the City’s Resolution No. 2008-67 adopted on June 24, 2008, states that the San Bruno nonprofits shall be responsible for “…the costs incurred by the city for fireworks public education, enforcement of the requirements of San Bruno Municipal Code Chapter 6.50 and this resolution, and fireworks clean-up.” For the City’s “Cost Recovery Invoices”, “Fireworks Cost Recovery Billing” issued to the San Bruno nonprofit organizations for the years 2008 through 2023, inclusive, please provide the above information required for each department or contract agency for services billed to the nonprofit organizations, and the list of individuals performing each service, the hours and shifts worked, etc.

18 SECTION FOUR

Subject: The subject matter of this request is to determine if the City of San Bruno staff ever considered and/or recommended that the City Council adopt a “Cost Recovery Fee/Fine” to be levied on each illegal fireworks violator in order to cover each violator’s pro rata share of the City’s costs of illegal fireworks enforcement, fire prevention, fire suppression, or public education, as well as the storage, transportation, and disposal of the illegal fireworks seized from the violator.

Request #11: California Health and Safety Code permits local jurisdictions to impose or levy a “Cost Recovery Fee/Fine” on top of any administrative fine they impose for the use, possession, or sale of illegal fireworks. In fact, the Model Ordinance, published by the Office of the State Fire Marshal in 2008 pursuant to California Health and Safety Code Section 12557, provided the model ordinance language for such a Cost Recovery Fee to cover each violator’s pro rata share of the City’s costs of illegal fireworks enforcement, fire prevention, fire suppression, or public education, as well as the storage, transportation, and disposal of the illegal fireworks seized from the violator. Please provide any summaries, reports, memoranda, emails, text messages, correspondence and/or “Records” wherein the idea of a violator’s “Cost Recovery Fine/Fee” was raised, discussed and/or recommended.

SECTION FIVE

Subject: Fireworks-related calls for service, incidents, citations, arrests, responses to or lack thereof for calls for service and/or prosecution records, summaries and other administrative records for the years 2008 through 2023, inclusive.

Request #12: Copies of any and all of your local agency (both Police and Fire Department) calls for service, incidents, citations, arrests, responses to or lack thereof for calls for service and/or prosecution “Records”, summaries and other administrative “Records” for the years 2008 through 2023, inclusive, relating to all fireworks-caused complaints, fires and/or injuries within all areas within the City of San Bruno’s jurisdiction. These reports should include all reports related to dangerous/illegal fireworks, State-Approved Fireworks (Safe and Sane Fireworks) and unknown fireworks.

Request: #13: Copies of any and all “Records”, summaries, reports and/or studies prepared on fireworks- related complaints, injuries and/or fires which relied upon materials, records and/or information requested in Request 12 above.

19 Request #14: Copies of any and all “Records”, summaries, reports, and/or studies prepared on the number of seizures, arrests, citations and/or complaints for the use, sale and/or possession of dangerous/illegal fireworks and/or State-Approved Fireworks (Safe and Sane Fireworks) within the City of San Bruno for the period of 2017 through 2021, inclusive. While we realize individual criminal arrest complaints or reports may be privileged, we are simply asking for copies of the reports and/or those records that may have summarized this illegal activity in the City of San Bruno and the Police and/or Fire Departments’ response to it.

Request #15: Copies of any and all “Records”, particularly, but not limited to, memoranda, emails, directives, correspondence, text messages, and/or reports maintained by or originating from the San Bruno Police and/or Fire Departments which delineate and/or discuss the respective department’s efforts to patrol and protect the City of San Bruno against the discharge of any dangerous/illegal fireworks in the years 2008 through 2023, inclusive and, more specifically, whether how those areas patrolled and the level of personnel utilized or deployed have increased, decreased or remained the same in the years 2008 through 2023, inclusive.

Request #19: All “Records” that would provide specific guidance and direction to sworn and non-sworn employees and officers of the San Bruno Fire Department and San Bruno Police Department for the years 2008 through the date of your final responses to this public records request, inclusive, as to how to handle and respond to calls regarding illegal fireworks and, more particularly, what activities, call volumes, other calls for service would preclude responding, citing, and/or confiscating illegal fireworks and what threat to fire and/or officer safety there would have to be to prevent responding, citing, confiscating and/or arresting an individual(s) for possession and use of illegal fireworks.

Request #20:

All summaries and “Records” that show the total number administrative and/or criminal citations issued and their respective dollar amounts for the sale, use and/or possession of dangerous/illegal fireworks and State-Approved Fireworks (Safe and Sane Fireworks) within the City of San Bruno for the period of 2008 through 2023, inclusive, and how many of those citations were paid.

The requests enumerated above have been narrowly construed, as much as possible, to not impose any undue burden on the City with the exemptions included in the California Public Records Act in mind. Any perceived ambiguities in a request should be construed in favor of being inclusive rather than exclusive.

The terms utilized that are defined by the California Public Records Act should be given their full meaning. Thus, for example, a request for any “writing” includes a request for “any handwriting, typewriting, printing, Photostatting, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing, any form of communication or representation, including letters, words, pictures, sounds, or symbols or combinations thereof, in any records thereby created, regardless of the manner in which the record is stored” (California Government Codes Section 6252)(g).

This also includes
any “writings” (including any text messages) on personal computers, telephones, cellular phones, social media, 20 etc., in which City of San Bruno business was conducted and in which “writings” within the definition of this request are stored.

This request reasonably describes identifiable records, or information produced therefrom, and we believe there’s no express provision of law exempting these records from disclosure. Accordingly, pursuant to Government Code Section 6257, we ask that you make these records “promptly available” to us (or our representative) based upon our payment of “fees covering direct costs of duplication or statutory fees, if applicable”.

To the extent that a portion of the information we have requested is exempt by express provision of law, Government Code Section 6257 additionally requires you to segregate and delete that material so that the remainder of the information may be provided to us to satisfy our requests.

In any case, if you determine that an express provision of law exempts from disclosure all or any portion of the materials we have requested, Government Code Section 6256 requires a determination and notification to us of “the reasons therefore” no later than ten (10) days from your receipt of this request. Government Code Section 6256.2 prohibits the use of the ten (10) day period, or any provision of the California Public Records Act, “to delay access for purposes of inspecting public records” and requires that you provide us with “names and titles or positions of each person responsible for the denial”.

The California Public Records Act requires the city to “reveal the general nature of the documents withheld,” and to “set forth the names and titles or positions of each person responsible for the denial.” (California Government Code Section 6253(d)). We respectfully emphasize our request for a specific response and all applicable exemptions to the request (California Government Code Section 6255(a)). A blanket list of exemptions that may or may not apply to the request coupled with the failure to indicate the existence of the documents responsive to the request denies us the ability to evaluate whether the City has justifiably withheld responsive documents. Denying us this opportunity frustrates the Legislature’s primary purpose in enacting the California Public Records Act, which is to “maximize public access to agency records.” (Haynie v. Superior Court, (2001) 26 Cal. 4th 1061,1073).

For each document that is responsive to our request that you claim is not required to be made available for inspection and copying, please state the date of the document; the name, job title, and address of the person who prepared it; the name, job title, and address of the person now in possession of the documents; a description of the subject matter of the document; and the present location and custodian for the document. Further, if the exemption you are claiming applies only to a portion of the records, please redact the portion and provide copies of the remainder of the records. If responsive documents no longer exist but are known to have been in existence, please state the circumstances under which they were either lost or destroyed, describe the do cuments
to the fullest extent possible, state the request(s) to which they were responsive, and identify each person having knowledge of the content of such documents.

To assist us in determining your collective and individual responsiveness to this request, please segregate the records you provide us according to each of the individual requests enumerated above and, where 21 appropriate, in whose possession those records resided (i.e., the department where the records resided and/or the individual who possessed any records, exclusively).

Under the California Public Records Act, an agency can charge fees covering the direct and actual cost of duplication unless a fee has been established for a specific record by law other than the CPRA. Fees can be charged only when copies of the records are requested and made, not for the time spent in searching, reviewing, locating, redacting and/or deleting documents by the City of San Bruno (California Government Code 6253(b)).

As you know, state law permits you to reduce or waive copying fees, particularly when the release of the requested information would be “in the public interest”. While we believe that this request plainly fits that category, we are not asking you to waive such fees given the current budgetary problems facing most local governmental agencies. However, if the fee exceeds $0.15 per page, please inform us of the total charges before you fill our request for copies.

Although we expect that you will agree that the materials requested are covered by, and are not exempt from, the California Public Records Act, we need not remind you that the Act is enforceable by court proceedings.

When a lawsuit results in order to compel an agency to disclose information that has been improperly withheld, there is a mandatory award of court costs and reasonable attorney’s fees to the plaintiff (Government Code Section 6258 and 6259).

If you have any questions regarding this request, please call the undersigned at (916) 443-3816. Thank you for your timely attention to our request.

Very Truly Yours,

REVELL COMMUNICATIONS

Dennis C. Revell
President/CEO

Office--
Cell - --

22 Cc: San Bruno Nonprofit Organizations

What Happens in Nevada----Should Stay in Nevada!!!!
While having made great strides in improving illegal fireworks enforcement strategies, local jurisdictions across our state are still plagued by an ever-growing illegal importation of these dangerous, illegal items into California. Regrettably, not enough is being done at the state and federal level to stop this now year- round flow of these illegal fireworks into California, and, as a result, local jurisdictions have become not only the “first line of defense”, they have become the “only line of defense” against illegal fireworks.

Currently, there are six fireworks stores in Southern Nevada in the city of Pahrump and seven store immediately northeast of Reno in the cities of Schurz, Battle Mountain, and Pyramid Lake. These stores sell the full range of CPSC 1.4 G, federally approved fireworks that are illegal in California.

Most informed estimates suggest that these thirteen stores account for at least 60 to 70 percent of the illegal fireworks used in California (To see the list of stores, their locations and websites click on this link: Listing of Nevada Fireworks Stores.

One of these stores (Area 51 Fireworks), according to press reports and prosecutorial records was the retailer for both the massive amounts of federally approved, but California illegal fireworks, found or involved in the massive explosions and busts in Ontario and the City of Los Angeles in 2021.

Everyone agrees that the sale and use of illegal fireworks in California has reached epidemic proportions. While 2020 was bad, everyone believes 2021 proved to be substantially worse, especially in communities where no fireworks are allowed. One need only reflect on two striking and tragic examples of this escalation in illegal fireworks issues: the death of two people in a massive explosion in Ontario, CA (Ontario); and the injuries to 17 people and the destruction of the LAPD Bomb containment truck and multiple homes and businesses in the vicinity in Los Angeles (Los Angeles in 2021); to understand what has so many people concerned.

The suspect in the Los Angeles bust, according to media reports and prosecutorial records (see material from the United State Attorney’s Office for the Central District of California at the following link:
https://www.justice.gov), made up to five trips in a large rental truck to the Area 51 Fireworks’ store in Pahrump and purchased massive amounts of illegal fireworks, loaded them into this rental truck and brought them back to Los Angeles where he stored them at his residence along with handmade explosives he claimed he bought from someone in AREA 51 Fireworks’ parking lot. It is the universal general policy of most, if not all of these stores to:

➢ Require the purchaser to show their driver’s license, and the store scans and saves it; ➢ Sign a form that they will not use these fireworks in the town where they were purchased and will only take them somewhere where their possession and use are legal, or buy a “shooter’s permit”; and
➢ State that they are buying these for personal use only.

Area 51 Fireworks had to know that both the defendant in the Los Angeles incident and the deceased individuals in the Ontario explosion were violating California criminal statutes and regulations by buying massive quantities of fireworks illegal in CA and bringing them back into CA. Given the volumes purchased and the frequency of those purchases, AREA 51 Fireworks was on actual notice that these fireworks were not for personal use but for resale in a location where they were illegal to possess, use or sell without a proper California license from the State Fire Marshal.

As further evidence of how AREA 51 Fireworks in Pahrump, Nevada facilitates large bulk sales to California residents, we would draw your attention to the below link for a You Tube video posted by someone who claims to be a “frequent buyer” at the Pahrump fireworks stores and most notably AREA 51 Fireworks. He explains the layout of the front of the building which is for “Retail Sales” with its individual items and assortments and then takes you in the back for what are designated “Wholesale Sales” with its required “Purchase by the Case” and the products you buy in bulk and how to do it. The buyer’s name and identification is captured as part of that bulk sales process. No doubt Mr. Arturo Ceja’s reported five trips with a rental truck to AREA 51 Fireworks between June 20, 2021 and June 29, 2021 were purchases from the “Wholesale Sales” department of AREA 51 Fireworks. https://www.youtube.com
Now lest you think using the term “Wholesale” means you must have some sort of wholesaler’s license or be a licensed retailer, it is merely a camouflage for large bulk sales to people who will then, in large part, illegally remarket the products at a substantial markup in locations where they are illegal, like California.

No Attorney General, since January 1, 2008, when the mandate in CA Health & Safety Code Section 12704 took effect, has taken the threat and scale of this criminal activity seriously and ever put anyone on notice as the statute mandates.

Lest you doubt these rough sales dollars estimates, in a letter to the Chair and Members of the Nevada Senate Committee on Government Affairs, dated 3/28/21, from Douglas Burda, CEO of Red Apple Fireworks in Pahrump, Mr. Burda states the following:
“We, on average, pay nearly $1,000,000 a year in state and local taxes and fees.” The state and local tax rate in Pahrump, NV is 7.6% ! That would mean, by Mr. Burda’s own admission, “on average”, the Red Apple Fireworks store in Pahrump sold almost $14 million of fireworks every year and it’s safe to assume the vast amount of those annual sales were knowingly made to California residents. And that’s only one store out of thirteen.

Rationale for Adopting Administrative Fine
Procedure for Illegal Fireworks

Until about twelve years ago, local jurisdictions, in most instances, were relegated to criminally citing those in possession or using illegal fireworks utilizing provisions of the California Health and Safety Code. As a result of state legislation (SB 839) which was signed into law on October 12, 2007 and became effective January 1, 2008, local jurisdictions are now allowed to utilize an Administrative Citation and Fine Process for possession and/or use of less than 25 pounds of illegal fireworks.

The following slide sequence, that was prepared for City of Sacramento, will explain why we recommend that San Bruno adopts an Administrative Citation process for the sale, possession and/or use of under 25 pound of illegal fireworks.

Rationale for a Fireworks
Social Host Ordinance
Due to the increasingly high use of illegal fireworks on or about the 4th of July and New Year’s Eve each year, and jurisdictions across the state being unsuccessful in holding users and possessors fully accountable for the possession and/or use of these dangerous illegal fireworks; an increasing number of cities, counties and fire districts are adopting “Fireworks Social Host Ordinances” in order to make owners, renters, leasees, and/or those that have possession of a residence or other property (“Responsible Person”), responsible for dangerous illegal fireworks possession and/or use on that property. Law enforcement and fire authorities in a jurisdiction only need to verify on what property the fireworks were launched or used. Once that is verified, the jurisdiction may pursue the “Responsible Person” for that jurisdiction’s fine. In most instances it is the maximum fine of $1,000.

Both fire and police representatives will tell you that while the discharge of illegal fireworks can be tied to a particular residence or property, it is often difficult to tell who at the residence or property discharged the illegal fireworks. The owner or tenant of the premises is often in the best position to control and knows or should know of the possession, manufacture, storage, sale, handling and use of illegal fireworks on his/her residence or commercial premises. Many of these jurisdictions who have adopted social hosts ordinances have concluded that those persons who have possession or control of private property where dangerous illegal fireworks are being stored, sold or used, have failed to ensure that this activity is not taking place on their property.

The City of San Bruno should adopt a Fireworks Social Host Ordinance and, like the vast majority of those who have Fireworks Social Host Ordinances, include a provision in the ordinance that, in addition to the Administrative Fine levied against the illegal fireworks violator, the City of San Bruno could also recover reasonable “Response Costs”.

Rationale for Response Costs Recovery
Ordinance Provision

Despite its mandatory duty to pick up illegal fireworks within 90 days of when a local jurisdiction had seized
them, the State Fire Marshal, until the last two years, was not picking up any of those warehoused illegal fireworks and were telling local jurisdictions it was their responsibility to dispose of them at a cost of as much as $23.00 per pound. As a result, in part because of TNT Fireworks’ advocacy on the issue on behalf of local governments across the state, we were able to convince the Brown Administration and the State Legislature to appropriate additional money in 2014 and 2015 to take care of the backlog of seized illegal fireworks across the state as well as those that were seized in 2015 and 2016. For the better part of the first seven years of the Brown Administration, the Governor was unwilling to allocate any new General Fund monies to deal with this admittedly General Fund responsibility and as a consequence there was no money in the State Fire Marshal Fund to cover the pickup, transportation and disposal of any illegal fireworks seized by any jurisdiction, except when it made emergency transfers from other sources.

In O
ctober 2018, Governor Brown did a Budget Change Proposal (BCP) and moved $3.6 million into the State Fire Marshal Fireworks Enforcement and Disposal Fund to fund illegal fireworks enforcement, disposal and public education for the balance of Fiscal Year 2018/2019.

Governor Gavin Newsom introduced his proposed state budget for Fiscal Year 2024/25. As a part of the overall budget, he included an on-going $3.6 million for fireworks enforcement, education and disposal. As you may know, the funding for fireworks enforcement and disposal has varied over the decades with no long-term solution. This general fund proposal should help resolve the long-standing issue of disposal of illegal and dangerous fireworks that are seized and stockpiled throughout the state. It will hopefully provide a stable, long-term funding source to support the increasing demands for fireworks education, enforcement, and disposal. The proposal funded four positions within CAL FIRE-Office of the State Fire Marshal to assist in the enforcement and disposal efforts. The State Fire Marshal’s goal is to not only collect local confiscated fireworks in a timely manner, but to provide enforcement support and assistance to regional fireworks task forces and interdiction operations. The State Fire Marshal also plans to expand its public outreach campaign and provide local agencies with additional tools and resources to educate the public on the hazards of illegal fireworks.

Despite the recent funding and the continued new budget line item, the City of San Bruno should adopt a “Response Cost Recovery Ordinance Provision” as a safety net to allow the City of San Bruno to seize illegal fireworks and minimize its exposure of being stuck with costly transportation, storage and disposal costs associated with the state’s failure to pick them up and dispose of them, as well as to recoup other reasonable costs associated with each citation.

1 Lupita Huerta
From: Gina DeMartini >
Sent: Tuesday, May 14, 2024 5:36 PM
To: City Clerk
Subject: Public comment
Good evening,
I am hoping to make it to the meeting in time to make a public comment. Just in case I would like to make a comment regarding the parking permits on Hensley and Kains Avenue as well as the downtown parking meters.

Residential parking permits: Kains/Hensley
I am not totally against permit parking. However, the residents in this area did not approve parking deficiencies in the new condo structure. 25 parking spots is not enough for the amount of units being built. The city knew this but approved it anyway because it is within the State of California code. What you did not take into consideration is the dense population of single family homes in the area and the already strained parking situation as well as the many ADU buildings adding even more parking challenges to our neighborhood. Since the city made the decision to cause further stress on the neighborhood, why should the residence have to PAY for permits. Why should our guests have to have paid permits? This is not fair and is just an additional, unnecessary expense passed along to the homeowners to cover the city's poor decisions. Just like the sewer system being neglected then making the homeowners pay outrageous rates to make the necessary upgrades. Parking permits ok. Dont make US pay.

Downtown parking meters:

Again, I am not against the meters. I am however against the fact that we have to pay full increments instead of dropping a quarter into the meter to grab a cup of coffee or produce or a quick gift or meal to go. Our downtown merchants deserve our busin
ess but we are being forced to go elsewhere to avoid the broken meters, and one hour minimum parking. i.e. stop for an onion and have to pay 1.50 parking. Order a corsage and pay 1.50 parking to order and another 1.50 parking to pick it up. Who wants to frequent the coffee shops when parking is 1.50.? This needs to be corrected and if it takes time, then cover the meters (that are malfunctioning) and stop ticketing until you get it right. No other city in the area has a 1 hour minimum parking.

Thank you for listening.

Gina DeMartini

San Bruno City CouncilMay 14, 2024

San Bruno City Council
May 14, 2024