Ordinance of the City Council of the City of Livingston Amending Title 7, Chapter 4 of the Livingston Municipal Code Pertaining to Fireworks and the Issuing of Permits.

Meeting Date: February 18, 2014

Agenda Item #2. Ordinance of the City Council of the City of Livingston Amending Title 7, Chapter 4 of the Livingston Municipal Code Pertaining to Fireworks and the Issuing of Permits.

Note from TheGardeningSnail: Parts of this page may have been prepared by running a PDF file through a program that converts Image to Print. So there may be a few textual Gremlins that have slipped in. I may also have broken up some of the longer paragraphs, for easier reading.

This particular Hearing Item has so many strikeouts and additions that I have also done some highlighting do make it easier to read. When in doubt, check the images from the Agenda Packet which have been included below.

STAFF REPORT

AGENDA ITEM: Ordinance of the City Council of the City of Livingston Amending Title 7, Chapter 4 of the Livingston Municipal Code Pertaining to Fireworks and the issuing of Permits.

MEETING DATE: February 18, 2014

PREPARED BY: Jacquelyn Benoit, Recreation Superintendent

REVIEWED BY: Jose Antonio Ramirez, City Manager

RECOMMENDATION:

Introduce and Waive the First Reading of Ordinance No. _ of the City Council of the City of Livingston Amending Title 7, Chapter 4 of the Livingston Municipal Code Pertaining to Fireworks and the Issuing of Permits.

BACKGROUND:

The City Council originally discussed amending the Fireworks Ordinance in 2012. Over the last few years the Council has periodically revisited the issue. At the regular Council meeting of January 21, 2014, Staff was provided direction to bring back the existing Fireworks Ordinance with certain amendments for Council consideration.

DISCUSSION:

Staff has amended the Fireworks Ordinance to change the selection process of non-profit organizations receiving permits from a rotation list to a lottery process for 3 out of the 5 permits. The City Council would have the discretion to issue the other 2 permits by selecting from interested non-profits that meet all the requirements of the Fireworks Ordinance.

Below are some of the changes made by Staff for Council’s consideration:

1. Amendments to the definition section (7-4-1):

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(G) “Lottery” means a random selection process conducted by the City Council at the second regularly scheduled Council meeting in March for the selection of non­ profits that will be issued permits to sell Safe and sane fireworks. For 2014, the Lottery will be held at the second regularly scheduled Council meeting in April.

{G}{H}Non-profit organization” means (1) any non-profit association, charity, or corporation organized primarily for veteran, patriotic, welfare, civic betterment, youth activities, or charitable purposes, (2) a group which is an integral part of a recognized non-profit national organization, or (3) an organization affiliated with and officially recognized by an elementary, junior high, high school and/or school district that serves, in whole or in part, the residents of the City of Livingston. All Non-profit organizations must be recognized by either the IRS or the State of California. Evidence of non-profit status shall consist of a Letter of Determination” from the State of California Franchise Tax Board. If this letter cannot be obtained, other evidence must be offered and the City Manager will determine its validity.

2. Amendments to the prerequisites for issuance permit section (7-4-4):

(A) No permit to sell Safe and sane fireworks shall be issued to any person, except Non-profit organizations, as defined in this Chapter. included OB the City Permit Rotation List described and Permits shall be issued using a lottery system and by City Council selection, as explained more fully below.

(B) Applications from qualified non-profit organizations desiring to be placed on the Permit Rotation List participate in the Lottery selection must be received by the City Clerk before February prior to February 1 each year, with the exception of 2014, when the applications can be submitted prior to April 1. The City Council Manager shall determine in an open meeting whether the applicant Non-profit organization is qualified pursuant to this Chapter, to be added to the Permit Rotation List included in the Lottery selection process and shall make all additions to the Permit Rotation List by ResolutionAn applicant who is denied placement on the Permit Rotation List participation in the Lottery selection process may appeal the City Council’s Manager’s decision by submitting a written appeal, accompanied by an appeal fee as set by the City Council, to the City Clerk within (15) (10) days of the City Council’s Manager’s decision. The City Council shall consider the appeal prior to conducting the Lottery selection for the issuance of permits at its nextsecond regularly scheduled Council meeting in March, or as soon thereafter as is Reasonably practicable but in no event more than 30 days after the denial, and shall consider public comment and any evidence presented by the applicant at that time. The City Council may revise, modify or sustain the denial after the public hearing, and its decision shall be final. If the Council decides to reverse the City Manager’s decision, the applicant will be included in the Lottery. For 2014, the Lottery will be held at the second regularly scheduled meeting in April.

(C) A non-profit organization, including its affiliated organizations may submit no more than one (1) application for a permit to sell safe and sane fireworks within the City of Livingston. If more than one (1) application is submitted on behalf of any non-profit organization, including an affiliated organization, only the first request submitted will be honored and entered into the Lottery.

(D) One (1) permit entitles the qualified non-profit organization to one (1) fireworks stand, which shall operate on the location listed on the permit.

(E) The maximum number of permits which may be issued and the maximum number of safe and sane fireworks stands that will be permitted pursuant to this Chapter during any one

(1) calendar year shall not exceed one (1) permit for each three thousand (3,000) residents of the City of Livingston, or fraction thereof, based on the latest California Department of Finance estimate published before the end of the permit application filing period.

(F) Applicants placed on the Permit Rotation List and permits shall be issued to applicants on the Permit Rotation List in numerical order. Once issued a permit, the applicant will be placed at the end of the List. Applicants selected to receive a permit to sell Safe and sane fireworks under the Lottery process will not be allowed to participate in the Lottery for the next calendar year.

(G) Two (2) or more qualified applicants may be issued a permit as a joint venture. Applicants wishing to be considered as joint ventures must list the other non­ profit(s) they would like to be joined with on their application. Joint ventures may each submit a separate application listing the other non-profit(s) on the application.

(H) Permits issued pursuant to this Chapter are valid only during the period specified on the permit in the calendar year issued.

(I) Retail sales of safe and sane fireworks shall be permitted only from temporary fireworks stands. The sale of safe and sane fireworks from any other building or structure is prohibited.

3. Amendments to the section detailing the procedure for the Lottery and Council selection of the 2 non-profits (7-4-6):

(J) The City Council shall determine the rank order of the Permit Rotation List through conduct a random lottery drawing at an open meeting on May of 2008 at the second regular meeting in March each year. For 2014, the Lottery will be held at the second regularly scheduled meeting in April. The Permit Rotation List compiled at that time shall continue from year to year and only Qualified Qualified Non-profit organizations who have submitted applications for placement on the Permit Rotation Listpursuant to this Chapter shall be included in the Lottery. that lottery.

Thereafter, all non profit organizations who submit an application for placement on the Permit Rotation List, and qualify for inclusion pursuant to the City Council’s determination, shall he added to the end of the Permit Rotation List in the order in which their application is received by the City Clerk.The selection process with be random and will only be used if the City receives more applications than available booths. The City Council will draw one (1) alternate during the Lottery process in case a selected Non-profit fails to meet the requirements of this Chapter. Prior to the Lottery, the Council will hear any appeals submitted pursuant to Section 7-4-4 of this Chapter.

(B) The City Council shall have the discretion to select up to two (2) Non-profit organizations outside of the Lottery process.

  • (1) Non-profits wishing to be considered by the City Council for such discretionary selection shall submit applications similar to all other Non-profit organizations requesting to participate in the Lottery, pursuant to Section 7-4-4 of this Chapter.

  • (2) The City Council will consider the applications and select up to two (2) non-profits at the second regular meeting in March each year. For 2014, the selection will be occur at the second regularly scheduled meeting in April.

  • (3) The City Council shall have the discretion to have these two (2) discretionary selections be determined as part of the Lottery if they desire.

  • (4) Non-profits submitting requests to the Council for selection outside the Lottery process will automatically be included in the Lottery. If the non-profit is selected by both the Council using a discretionary selection and the Lottery, the non-profit will only be issued one (1) permit and another non-profit will be selected randomly using the Lottery.

  • (5) As part of the application for a discretionary selection, applicants must also include a written statement describing the reasons whythey believe the City Council should select their Non-profit organization.

(K) All Non-profit organizations rotating into position on the Permit Rotation List for a permit to sell safe and sane fireworks requesting to participate in the Lottery or requesting to have the Citv Council select them as part of the Council’s two (2) selections, shall complete permit application on forms supplied by the City as required under Section 7-4-4 of this Chapter. Every application shall include, but not be limited to, the following:

  • (1) Name, address and phone number of the non-profit organization.

  • (2) Brief statement of services and benefits provided to citizens of the City of Livingston.

  • (3) Non-refundable application fee of twenty-five dollars ($25).

  • (4) Federal Tax Identification Number.

  • (5) Principle permanent meeting place of the non-profit organization.

  • (6) Roster of active members of the non-profit organization.

  • (7) Proof of tax-exempt status. Evidence of non-profit status shall consist of a Letter of Determination from the State of California Franchise Tax Board. If this letter cannot be obtained, other evidence must be offered and the City Manager will determine its validity.

  • (8) The proposed location of the fireworks stand.

(L) Upon notification of permit approval by the City of Livingston, either by way of the Lottery process or Council selection, a non-profit organization qualifying for a permit must provide the following:

  • (1) Two-hundred fifty dollar ($250) non-refundable permit fee.

  • (2) One-hundred dollar ($100) refundable cleanup bond. Prior to the issuance of a permit, each applicant shall file with the City Clerk, a check made payable to the City of Livingston in the amount of one hundred dollars ($100) to assure compliance with the provisions of this ordinance. Such deposit shall be refundable upon, including, but not limited to, the removal of the stand and the cleaning of the site to the satisfaction of the City Building Inspector. In the event the permittee does not so comply or remove the stand or clean the site, in the manner required by the City Building Inspector or his or her designee, the City may clean the site itself and shall deduct the cost thereof from the permittee’ s deposit.

  • (3) Written permission for use of the property upon which said proposed stand will be located.

  • (4) Proof of insurance in a form acceptable to the City Manager. The policy or policies of insurance required by this section shall be endorsed to designate the property owner, charitable organization, and the City of Livingston, including its elected official officers, agents, representatives, employees, and volunteers as additional insureds thereunder. The insurance shall afford coverage, in addition to and excluding defense costs, of at least $1,000,000 per occurrence and $2,000,000 in the general aggregate and shall include the following:

  • (a) Public liability insurance combined single limit, bodily injury, and property damage, each occurrence.

  • (b) Premises/operations liability.

  • (c) Products liability, including completed operations liability.

  • All insurance policies shall be endorsed to be primary insurance as to the City its elected officials, officers, agents, representatives, employees and volunteers and any other insurance, deductible or self-insurance maintained by the City, its elected officials, officers, agents, representatives, employees and volunteers shall be considered excess insurance over and above the applicant’s insurance and shall not contribute with this primary insurance. The policies shall also provide that the insurer will not cancel the insured’s coverage without 15 days written notice to the City Manager of the City of Livingston.

  • (5) The applicants shall save, hold harmless and indemnify the City, its elected officials, officers, agents, representatives, employees and volunteers from all claims, demands, judgments, costs or expenses in law or equity that may arise from or are in any way related to any work performed by the permittee, his agents, or employees under the terms of any permit issued under this chapter.

  • (6) Temporary sales tax permit issued by the local office of the State Board of Equalization.

  • (7) A validly issued and unexpired State Fire Marshal Retail Sales Permit. (See California Health and Safety Code Section 12599).

  • (8) Site plan graphically showing the orientation of the stand at the proposed location. The site plan shall show utilities, location of permanent and temporary structures, curb cuts, and/or driveways, parking lots and identify the nearest sanitary facilities and fire hydrants.

  • (9) Approval from the Police Department and Public Works Department that operation at the fireworks stand at the proposed location will not present any substantial hazard to vehicular or pedestrian traffic.

(M) Should an approved Non-profit organization fail to provide the aforementioned items, the Non-profit organization’s claim on the permit will become null and void and the permit shall be issued to the alternate Non-profit selected during the Lottery and the next organization on the rotation list will be allowed to complete the items and may be granted a permit.

(N) Any City permit issued pursuant to this Chapter shall be subject to the requirement that at least one or more representatives of each non-profit organization shall attend a safe and sane fireworks stand operator safety seminar each year conducted by the licensed fireworks wholesaler or other City approved organization that is supplying the safe and sane fireworks to the Non-profit organization. City permits will be distributed at the conclusion of said Safe and sane fireworks stand operator safety seminar. Should at least one representative of an approved non-profit organization not attend the safety seminar, said non-profit organization shall lose all claims to its permit. Any permits lost in this fashion will remain unused for the duration of the fireworks season for which such permit was intended.

Permits may be issued with conditions to ensure that the fireworks stand will be operated in a safe and legal manner, will not disturb the peace and quiet of the neighborhood and will not constitute a burden on City resources.

FISCAL IMPACT:

None.

ATTACHMENTS:

1. Ordinance No. _ of the City Council of the City of Livingston Amending Title 7, Chapter 4 of the Livingston Municipal Code Pertaining to Fireworks and the Issuing of Permits.

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