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HomeMy WebLinkAbout02/14/2006 B A K E R S F I E L D Zack Scrivner, Chair Sue Benham David Couch Staff: Alan Christensen MEETING NOTICE LEGISLATIVE AND LITIGATION COMMITTEE of the City Council - City of Bakersfield Tuesday, February 14, 2006 1:00 p.m. City Manager's Conference Room Second Floor - City Hall, Suite 201 1501 Truxtun Avenue, Bakersfield, CA AGENDA 1. ROLL CALL 2. ADOPT JANUARY 5, 2006 AGENDA SUMMARY REPORT 3. PUBLIC STATEMENTS 4. DEFERRED BUSINESS A. Discussion and Committee recommendation on proposed amendments to the fireworks ordinance and related fees - Gennaro/Fraze 5. NEW BUSINESS A. Discussion and Committee recommendation on elimination of the City Council Intergovernmental Relations Committee - Christensen B. Discussion and Committee recommendation on new law (AB 1234) requirements regarding City Council Compensation - Gennaro 6. COMMITTEE COMMENTS 7. ADJOURNMENT "$ D AFT ~--/"~. Zack Scrivner, Chair Staff: Alan Christensen Sue Benham For: Alan Tandy, City Manager David Couch AGENDA SUMMARY REPORT LEGISLATIVE AND LITIGATION COMMI'I'rEE MEETING Thursday, January 5, 2006 1:00 p.m. City Manager's Conference Room, Suite 201 Second Floor - City Hall, 1501 Truxtun Avenue, Bakersfield, CA 1. ROLL CALL Called to Order at 1:05 p.m. Present: Councilmembers Zack Scrivner, Chair; Sue Benham; and David Couch 2. ADOPT OCTOBER 17, 2005 AGENDA SUMMARY REPORT Adopted as submitted. 3. PUBLIC STATEMENTS 4. DEFERRED BUSINESS A. Staff update on Community Prosecutor Program City Attorney Gennaro gave a report on the six-month pilot Community Prosecutor Program, which began July 1, 2005. Two outside firms were given six-month contracts to prosecute 24 hours per week at the Kern County District Attorney's Office. Approximately 450 cases were disposed of in six months. The cost of the two outsourcing contracts was $159,120 at an average cost of $354 per case. The necessary funding is not available in the City Attorney's budget to continue the program in its current format. However, the program could be continued in-house and at the same time significantly reduce the cost per case. Due to the success of the program, City Attorney Gennaro recommended the Community Prosecution Program continue and become a permanent element of the City Attorney's Office. The goal of the program would not be to prosecute all of the LEGISLATIVE AND LITIGATION COMMITTEE Page 2 AGENDA SUMMARY REPORT Thursday, January 5, 2006 misdemeanors cited by the Bakersfield Police Department, but rather, to focus on misdemeanor citations of the Bakersfield Municipal Code and quality of life crimes as designated by this Committee and approved by the City Council. A list of sample crimes that could be handled by the Community Prosecution Program was reviewed. Several cities including Glendale, Riverside, Modesto, Stockton and Fresno have at least one attorney, if not more, handling quality of life crimes in-house. Police Captain Taylor expressed the program has worked very well, even better than was anticipated. Committee Member Benham made a motion the Committee recommend to the City Council that the Community Prosecution Program be continued and made a permanent program in the City Attorney's Office with a focus on quality of life crimes. The Committee unanimously approved the motion. 5, NEW BUSINESS A. Review and Committee recommendation on reapportionment procedures Assistant City Manager Christensen provided an overview of the current procedures to adjust ward boundaries. When populations in any ward exceed a given percentage, staff develops a number of alternative boundary adjustments for the City Council to review to get the process started. Based upon comments from the City Council, different versions of the proposed ward boundary maps are prepared for Councilmembers to review. The item is then placed back on the Council agenda for discussion and/or action. There was a referral to this Committee regarding forming an ad hoc committee appointed by the Council to do the initial reapportionment work now being done by the Council. The ad hoc committee would analyze, make changes to ward boundaries and make its recommendations to the Council. According to the City Charter, the Council would still be the body responsible to approve and adopt the ward boundaries. Committee Chair Scrivner provided a sheet with suggested criteria on forming an ad hoc committee on reapportionment. He suggested if an ad hoc committee were formed, it have five members, so them would not be an impression that each Councilmember were represented separately. Committee Member Couch requested more time to review the criteria for forming an ad hoc committee on reapportionment, as the list of criteria was not available in time for packet delivery. LEGISLATIVE AND LITIGATION COMMITTEE Page 3 AGENDA SUMMARY REPORT Thursday, January 5, 2006 Committee Member Benham expressed she felt the process currently in place works well and the public's interest has been well served. She further expressed she was not in favor of forming an ad.hoc committee on reapportionment due to the burden that would be placed on staff to train the members. However, she was in agreement with discussing it further at the Committee level. Due to the time frame for completing the current reapportionment, everyone agreed there was not enough time for the Council to form a committee and get the committee brought up to speed for the current process. City Attorney Gennaro explained the Charter only calls for reapportionment every decade. Due to public interest, it would be in the Council's best interest to complete the process that has been started. However, the City Attorney recommended reapportionment not be done again until the year 2010. Committee Chair Scrivner with the agreement of the Committee Members requested staff to bring the issue back to the Committee for further review. B. Discussion and Committee recommendation on Noise Ordinance City Attorney Gennaro gave a report on vehicle stereo noise ordinances. In response to the referral request, the Cities of Fresno and Los Angeles were contacted for their ordinances. However, Bakersfield's ordinances provide for protection from more sources of noise than either Los Angeles' or Fresno's. The City Attorney explained that if the noise is coming from a vehicle operating on a public street, those violations fall under the California Vehicle Code. Cities and counties are prohibited from enacting legislation, which is already addressed in the Vehicle Code. Mr. Hipolito Rocha spoke and explained that the loud stereo noise he is able to hear inside his home is coming from vehicles parked on the street, vehicles parked in the Jack In The Box Restaurant parking lot on the corner of Colony and Panama Lane, and from a house two doors down. The Jack In The Box is open 24 hours a day. He has called the Police Department many times, but it is a Iow- priority call and they cannot respond before the vehicles leave the area. He has a decibel meter and is able to record the readout. Police Captain Taylor said he will have the officers who patrol that area check for car stereo noise as they go by the Jack In The Box and will also have an officer contact the offending neighbor. The City Attorney's Office will write a letter to the Jack In The Box and to the neighbor playing the loud music if the police officer feels it is necessary after the neighbor has been contacted. The Committee took no further action on the noise ordinance. LEGISLATIVE AND LITIGATION COMMITTEE Page 4 AGENDA SUMMARY REPORT Thursday, January 5, 2006 C. Discussion and Committee recommendation on 2006 Committee meeting schedule The Committee unanimously adopted the 2006 meeting schedule. The Committee is scheduled to meet on Tuesdays at 1:00 p.m. on the following dates, which are subject to change if needed due to other scheduling conflicts: February 14 March 14 April 18 May 16 June 13 July 18 August 15 September 12 October 10 November 14 6. COMMrI'rEE COMMENTS 7. ADJOURNMENT The meeting was adjourned at 2:00 p.m. Staff: City Manager Alan Tandy; City Attorney Ginny Gennaro; Assistant City Manager Alan Christensen; Development Services Director Stan Grady; City Clerk Pam McCarthy; Assistant City Attorney Janice Scanlan; and Police Captain Tim Taylor Others present: James Burger, reporter, The Bakersfield Californian; and Hipolito R. Rocha cc: Honorable Mayor and City Council S:~,C',06 Legislative&Litigation~LL 06 jan 05 summary.doc M O R A N D U M CITY A~ORNEY Februa~ 10, 2006 TO: LEGISLATIVE AND LITIGATION COMMITTEE ZACK SCRIVNER, Chair SUE BENHAM FROM: VIRIGNIA GENNARO, CITY ATTORNE /'~ JANICE SCANLAN, ASSISTANT CITY ATTORNEY SUBJECT: IDENTIFICATION OF CHANGES TO FIREWORKS ORDINANCE AND FIRE CODE ADOPTION ORDINANCE The purpose of the amendments appearing in the current draft of the Fireworks Ordinance and the Fire Code Adoption Ordinance is to: (1) make the City's Fireworks Ordinance permitting requirements as similar as possible to the County of Kern's fireworks permit regulations; (2) make the City's Fireworks Ordinance Sales and use requirements consistent with the County of Kern's sales and use regulations; (3) add the cost of increased enforcement efforts into the fireworks permit application fee; (4) constrict the times of use from year round to time periods around specific events associated with the use of fireworks and consistent with County restrictions; (5) authorize County of Kern Fire Inspection and Prevention Officer to enforce the City ordinance in the City limits; and (6) strengthen the City's penalty options against code violators to deter future violations. We have attached a copy of the Task Force draft Fireworks Ordinance showing the Task Force amendments in red ink and briefed each change below. We have also attached a second copy of the draft ordinance showing minimal but more changes requested by county staff to make the City's ordinance consistent with some of the county's requirements and permit uniform enforcement. These amendments (County's) are shown in green ink. 1. 8.44.010 A. Amended the categories of persons qualifying as "applicants" from "4" to "3" to make this paragraph consistent with section 8.44.030(A)(1) which identifies only three categories of persons allowed a permit. It is essentially correcting an inconsistency not previously noticed or corrected. 2. 8.44.030.E.7. Amended the spelling of the word "included" to "including" for grammatical correctness. 3. 8.44.035.E.1. Deleted the reference to "retail establishment"to make it consistent with paragraph "A" of this section. Legislative and Litigation Committee February 10, 2006 Page 2 4. 8.44.035.E.2. Deleted the reference to "retail establishment" to make it consistent with paragraph "A" of this section. $. ' 8.44.035.E.7. Amended the spelling of the word "included" to "including" for grammatical correctness. 6. 8.44.035.1. Amended to clarify that the sales permit "applicant"/non-profit corporation-retailer of fireworks will bear the cost of additional public education for use of fireworks and increased manpower costs for additional enforcement efforts of the prohibition on use of illegal fireworks. 7. 8.44.040.C. Added a code reference to correct an unintentionally omitted reference in this paragraph and allow enforcement of section 8.44.035. 8. 8.44.040.F. Added to clarify and make uniform with the County the prohibition against fireworks stands locating within one hundred feet of any gasoline "handling" facility, regardless of whether or not it is located above or below ground. 9. 8.44.040.R. Amended to reflect a desired change in the houri that applicants may sell legal fireworks. The task force recommended new hours of sale as follows: July 1 -- noon to 10:00 p.m.; July 2 and 3 - 9:00 a.m. to 10:00 p.m.; and July 4 - 9:00 a.m. to 12:01 a.m. 10. 8.44.040.S. Amended to reflect a desired change constricting the times that the public may use legal fireworks from "year round" to the "July Fourth" celebration time pedod and the New Year celebration. The new hours of use are July 1 - 12:00 noon to 10:00 p.m.; July 2 and 3 - 9:00 a.m. to 12:01 a.m.; July 4 - 9:00 a.m. to 12:01a.m. the next day; December 31 - 11:00 p.m. to January 1, 12:30 a.m. (Note: these hours were changed again by County Counsel. See below.) 11. 8.44.040.T throUgh Z. Re-lettered to accommodate the change of content in subparagraph "S" restricting legal fireworks use, and to retain the desirable content of other paragraphs after former subparagraph "S" into the new amended section. 12. 8.44.040.Z. Added to clarify the specific Municipal Code chapter through which administrative enforcement may be exercised. 13. 8.44.070. Added to specifically refer the reader to the section in the Municipal Code where punishment options for violations of the City's Fireworks Ordinance and .the state's California Fire Code regulations of fireworks are set forth (i.e., the part of the City's Municipal Code where the City adopts and amends the application of the California Fire Code to City residents). Legislative and Litigation Committee February 10, 2006 Page 3 14, 15.64,036. Amended to identify the Fire Chief's authority to enforce Chapter 8.44 of the Municipal Code and to issue administrative compliance orders for the "use" of fireworks on any premises or outdoor area under the Fire Code. 15. 15.64.350. Amended to specifically authorize County Fire personnel to enforce California Fire Code regulations of fireworks and the City Municipal Code chapter regulating fireworks (8.44) pursuant to the Joint Powers Agreement in effect at the time of the violation. 16, 15.64.480. Amended t© except the standard misdemeanor maximum punishment ($500.00) for violating the Municipal Code (found at BMC § 1.04.010) from application to violations of the Fireworks Ordinance, to authorize the maximum penalty as allowed by state law at $1000.00, and to authorize the option of administrative enforcement fines up to $1,500.00. The amendments appearing in green ink and ctdkccut in the second draft represent the changes made after consultation with the County Counsel to make both ordinances more uniform in regulating the same subject matter. Those changes are bdefed below. 1, 8.44,040, K, Amended to make the City ordinance match the County ordinance in regulating the number of exits and other structural separation in the construction of fireworks stands. 2, 8.44.040,S, Amended to expand the number of hours that the public may use legal fireworks from those recommended by the Task Force as follows: The hours for July 1 are expanded from 12:00 noon to 10:00 p.m. to 12.01 a.m.; on July 2 and 3 are expanded from 9:00 a.m. to 10:00 p.m. to 12:01 a.m.; on July 4 the hours are expanded from 9:00 a.m. to 12:01 a.m. to 12:30 a.m.; and on December 31st the hours are expanded from 11:00 p.m. to 12:30 a.m. to 12:00 noon to January 1, 12:30 a.m. VG/AMS:Isc Attachments S:\FIRE\MEMOS\FireworksRevis2.VG,doc ORDINANCE NO. AN ORDINANCE OF THE COUNCIL OF THE CITY OF BAKERSFIELD AMENDING CHAPTER 8.44 OF THE BAKERSFIELD MUNICIPAL CODE RELATING TO FIREWORKS. BE IT ORDAINED by the Council of the City of Bakersfield as follows: SECTION 1. Chapter 8.44 of the Bakersfield Municipal Code is hereby amended to read as follows: Chapter 8.44 FIREWORKS Sections: 8.44.010 Definitions. 8.44.020 Permit required. 8.44.025 Effective dates. 8.44.030 Application - Issuance - Fee. 8.44.035 · Application - Issuance - Fee. 8.44.040 Regulations. 8.44.050 Revocation. 8.44.060 Appeal. 8.44.010 Definitions. Whenever used in this chapter, unless a different meaning clearly appears from the context, the words set out in this section shall have the following meanings: A. "Applicant" means those persons defined in Section '8.44.030(A)(1) through (4-) ~_3_~. B. "Person" means any individual, partnership, group, corporation or association of any nature whatsoever. 8.44.020 Permit required. It is unlawful for any person to sell or offer for sale or expose for sale within the city any fireworks in violation of this chapter or without having a valid permit in accordance with the provisions of this chapter. 8.44.025 Effective dates. Not withstanding anything to the contrary in Section 8.44.030, Section 8.44.030 shall be effective through July 15, 2006. All organizations issued a fireworks permit in S:\COUNClL\Ords\05-06 Ords\8.44Fireworks 1-17-06 draft, doc -- Page 1 of 11 Pages -- 2005 under Section 8.44.030 shall be eligible to reapply for a fireworks permit through July 15, 2006. 8.44.030 Application--Issuance--Fee. A. A permit for the sale of safe and sane fireworks may not be issued exCept to the following applicants: 1. A nonprofit organization or corporation organized and existing primarily for veteran, patriotic, religious, welfare, charitable or civic-betterment purposes, organized and established in the city at least one year prior to the filing of application for permit under this chapter and having a bona fide membership of at least thirty-five members. The organization must be one which provides direct and regular community services and benefits to the citizens of the city. A local generally recognized nonprofit organization is eligible to submit one application. Each educational and/or religious organization is eligible to submit one application (signed by the local recognized leader of the organization). , 2. Retail (for profit) business establishments which have, for a period of at least one year prior to the filing of an application for permit under this chapter, held a valid business tax certificate issued by the city under Chapter 5.02 of this ,code; provided, no such permit shall be issued to any such retail business establishment unless such establishment was issued a permit the previous year. 3. Those applicants having first obtained a permit or license from the State Fire Marshall under Part 2, Division 11 of the Health and Safety Code of this state. B. All recipients of fireworks permits except those specifically exempted in subsectiOn C of this section, shall be selected by a drawing (by lot) conducted by the city manager or his/her designee not later than April 10 of each year. C. The total number of fireworks permits to be issued shall not exceed one permit per four thousand population, or portion thereof, in the city, as set forth in the prior calendar year annual report of the State Department of Finance, but not' less than seventy-five; provided, however, any person applying for a fireworks permit who had such permit in 1994 and also in each subsequent year shall be issued a permit if otherwise qualified without being included in the drawing, notwithstanding the fact that such isSuance may increase the number of permits to more than that allowed herein. D. Applications for fireworks permits shall be submitted by the "applicant" (as opposed to the fireworks vendor) commencing March 1 through March 30 of each year. No applications shall be accepted by the city after March 30 of each year. Applications for the drawing referenced in subsections B and C of this section need not include the state sales tax number nor will require items 3 through 8 of the application form. Those applicants successful in the drawing shall have until May 15 to complete their applications. E. Except as modified by subsection D of this section, applications for fireworks permits shall be made on forms to be furnished by the city manager or his designee, shall be signed under penalty of perjury by the applicant and shall require the following information and documents: S:\COUNCIL\Ords\05-06 Ords\8.44Fireworks 1-17-06 draft.doc -- Page 2 of 11 Pages -- 1. The name, address and telephone number of the nonprofit organization or retail business establishment for which application is made; 2. The applicant's business tax certificate number if it is a retail business establishment, and the name and address of all owners of such business; 3. The location of the proposed fireworks sales; 4. The purpose of the nonprofit organization or corporation including the services provided to the citizens of the city, the number of citizens within the city the organization serves; the approximate date of its establishment in the city; its principal and permanent meeting place in the city; the total number of its local membership; the names and addresses of its officers; 5. A plot plan, showing the location of the temporary fireworks stand, utilities, location of permanent and temporary structures, curb cuts and/or driveways and identifying the nearest available sanitary facilities, and fire hydrants. For those applicants who were issued a fireworks permit for the preceding year, the plot plan must ~be submitted with the application package.. For those applicants successful in the drawing, plot plans must be submitted by May 15 of each year. Plot plans will be approved or rejected by the fire department by June 15. Amendment will not be permitted to any plot plan rejected subsequent to the March 30 application deadline for renewal permits or the May 15 deadline for successful drawing applicants, except to correct any violation of the minimum distance separation as required by Section 8.44.040F; 6. A written authorization, from the owner of the location or person in lawful possession thereof, if other than the applicant, for the locating of the business upon his or her property; 7. Evidence, satisfactory to the city manager or his designee, of (1) general liability insurance providing coverage on an occurrence basis for bodily injury, include~jtl~ death of one or more persons, property damage and personal injury, with limits as required by the city; and (2) workers' compensation, with statutory limits and employers liability insurance with limits as required by the city. All policies required of the applicant hereunder shall be primary insurance as to the city, its mayor, council, officers, agents, employees and volunteers .and any insurance or self-insurance maintained by the city, its mayor, council, officers, agents, employees and volunteers shall be considered excess insurance over and above the applicant's insurance and shall not contribute with it. The applicants shall save, hold harmless and indemnify the city, its officers, agents, employees and volunteers from all claims, demands, damages, judgments, costs or expenses in law or equity that may at any time arise from or is any way related to any work performed by applicant, his agents or employees under the terms of any permit issued under this ~chapter; 8. Cash bond in the sum of one hundred dollars, to be forfeited to the city in the event the permittee fails to remove said stand, equipment and rubbish from the premises upon which the stand is located before twelve noon on July 15 of the year for which said permit is granted. The cash bond shall be returned to the applicant upon. full performance of the requirements of this chapter;. S:\COUNClL\Ords\05-0.60rds\8.44Fireworks 1-17-06 draft.doc -- Page 3 of 11 Pages -- 9. Approval from the public works department of the city that operation at the fireworks stand at the proposed location will not present any substantial hazard to vehicular or pedestrian traffic. F. Location of temporary stands may not be changed after an application is filed except as required by the city, or where there is evidence of change in property ownership or management and prior approval or consent has been revoked by the new owners or managers. G. No one organization eligible to receive a permit may receive more than one permit for fireworks sales during any one calendar year. H. All permits issued under this chapter shall remain in effect from noon on July 1 to noon on July 5 unless earlier suspended or revoked. I. All applicants for permits, whether selected b'y drawing or' not, shall pay a non-refundable fee, on or before March 30 of each year, not to exceed the cost of processing any such application. All successful applicants for permits shall pay a fee, on or before May 15 of each year, not to exceed the full cost of inspecting and enforcing such business. All fees shall be established as set forth in Chapter 3.70 of this code. J. Permits may be issued with conditions to ensure that the business will be operated in a safe and legal manner, will not disturb the peace and quiet of the neighborhood and will not constitute an undue burden on city resources. K. This entire section shall sunset at midnight on July 15, 2006. 8.44.035 ApplicationMIssuance--Fee. A. On July 16, 2006, and thereafter, a permit for the sale of safe and sane fireworks may not be issued except to a nonprofit organization or corporation organized and existing primarily for veteran, patriotic, religious, welfare, charitable or civic- betterment purposes, organized and established in the city at least one year prior to the filing of application for permit under this chapter and having a bona fide membership of at least thirty-five members. The organization must be one which provides direct and regular community services and benefits to the citizens of the city. A local generally recognized nonprofit organization is eligible to submit one application. Each educational and/or religious organization is eligible to submit one application (signed by the local recognized leader of the organization). B. All recipients of fireworks permits shall be selected by a drawing (by lot) conducted by the city manager or his/her designee not later than April 10 of each odd year. Each recipient successful in the odd year drawing shall be eligible to reapply for a fireworks permit the following year. Unsuccessful applicants may reapply for a fireworks permit the next odd year. C. The total number of fireworks Permits to be issued shall not exceed one permit per f(~ur thousand population, or portion thereof, in the city, as set forth in the prior calendar year annual report of the State Department of Finance, but not less than seventy-five. D. Applications for fireworks permits shall be submitted by the "applicant" (as opposed to the fireworks' vendor) commencing March 1 through March 30 of each year. No applications shall be accepted by the city after March 30 of each year. Applications S:\COUNClL\Ords\05-06 Ords\8.44Fireworks 1-17-06 draft.doc -- Page 4 of 11 Pages -- for the drawing referenced in subsections B and C of this section need not include the state sales tax number nor will require items 3 through 8 of the application form. Those ' applicants successful in the drawing shall have until May 15 to complete their applications. E. Except as modified by' subsection D of this section, applications for fireworks permits shall be made on forms to be furnished by the city manager or his designee, shall be signed under penalty of perjury by the applicant and shall require the following information and documents: 1. The name, address and telephone number of the nonprofit organization .,~,..n ~,,,..~ ...... *"~'~"~'"""'~* for which application is made; 2. The applicant's business tax certificate number if it ................. , ........ ~a~O ................ OW~OFS ~, ~' 3. The location af the proposed fireworks sales; 4. The purpose of the nonprofit organization or corporation including the se~ices provided to the aitizens of the city, the number of citizens within the city the organization se~es; its principal and permanent meeting place in the city; the approximate date of its establishment in the city; the total number of its local membership; the names and addresses of its officers; 5. A plot plan, showing the location of the tempora~ fireworks stand, utilities, location of permanent and tempora~ structures, curb cuts and/or driveways and identifying the nearest available sanita~ faailities, and fire hydrants. For those applicants who were issued a fireworks permit for the preceding year, the plot plan must be submi~ed with the application package. For those applicants successful in the drawing, plot plans must be submitted by May 15 of each year. Plot plans will be' approved or rejected by the fire depa~ment by June 15..Amendment will not be permitted to any plot plan rejected subsequent to the March 30 application deadline for renewal permits or the May 15 deadline for successful drawing applicants, except to correct any violation of the minimum distance separation as required by Section 8.44.040F; 6. A written authorization from the owner of the location or person in la~ul possession thereof, if other than the applicant, fo~ the locating of the business upon his or her properly; 7. Evidence, satisfacto~ to the city manager or his designee, of (1) general liability insurance providing Coverage on an ocaurrence basis for bodily inju~, includ~ death of one or more persons, prope~y damage and personal inju~, with limits as required by the city; and (2) workers' compensation, with satisfacto~ limits and employers liability insurance with limits as required by the city. All policies required of the applicant hereunder shall be prima~ insurance as to the city, its mayor, aouncil, officers, agents, employees and volunteers and any insuranae or self-insurance maintained by the city, its mayor, council, officers, agents, employees and volunteers shall be considered excess insurance over and above the applicant's insurance and shall not contribute with it. The applicants shall save, hold harmless and indemnify the city, its officers, agents, employees and volunteers from all alaims, demands, judgments, costs or expenses in law or equity that may at any time arise from or is any SRCOUNCIL~Ords~05-06 Ords~8.44Fireworks 1-17-06 dra~.doc -- Page 5 of 11 Pages -- way related to a~y work performed by applicant, his agents or employees under the terms of any permit issued under this chapter; 8. Cash bond in the sum of one hundred dollars, to.be forfeited to the city in the event the permittee fails to remove said stand, equipment and rubbish from the premises upon which the stand is located before twelve noon on July 15 of the year for which said permit is granted. The cash bond shall be returned to the applicant upon full performance of the requirements of this chapter-; 9. Approval from the public works department of the city that operation at the fireworks stand at the proposed location will not present any substantial hazard to vehicular or pedestrian traffic. F. Location of temporary stands may not be changed after an application is filed except as required by the city, or where' there is evidence of change in property ownership or management and prior approval or consent has been revoked by the new owners or managers. G. No One organization eligible to receive a permit may receive more than one permit for fireworks sales during any one calendar year. H. All permits issued under this chapter shall remain in effect from noon on July 1 to noon on July 15 unless earlier suspended or revoked. I. All applicants for permits shall pay a non-refundable fee, on or before March 30 of each year, not to exceed the cost of processing any such application. All successful applicants for permits shall pay a fee, on or before May 15 of each year, not to exceed the full cost of inspecting ~ch b~i~: ~nd enforcing ~ ttl~i~ cc~ ~r~ ~'c¥i~li~.~l_~. ~b[lic i~f~'~tti~.. ~ ~ ~ ~a~f~tt~ ~c~tti~. All fees shall be established as set forth in .Chapter 3.70 of this code. J. Permits may be issued with conditions to ensure that the business will be operated in a safe and legal manner, will not disturb the peace and quiet of the neighborhood and will not constitute an undue burden on city resources. 8.44.040 Regulations. A. Those fireworks which are classified as "dangerous" fireworks under Section 12505 of the California Health and Safety Code are prohibited, except that such fireworks as are defined and classified as "safe and sane fireworks" in Section 12529 of the California Health and Safety Code may be displayed, sold and Used pursuant to the provisions of this chapter and not otherwise. Notwithstanding anything to the contrary, "Piccalo Pete" type and "Ground Flowe(' type fireworks shall not be used, displayed, or sold separately or in combination with otherwise allowed fireworks. B. No permit holder shall shout, make any outcry, blow a hor. n, ring a .bell or use any other sound device including any loudspeaker, radio or amplifying system where sound of sufficient volume is emitted or produced there from capable of being plainly heard upon the streets, alleys, parks or other pub!lc places. C. Any permit issued pursuant to this chapter shall be nontransferable, and shall be valid only as to the applicant and location provided on the application for such permit, or as set forth in Section 8.44.030F crt 8.44.~35F. Locational preference shall be given for the consecutive use of a particular location by the applicant as established S:\COUNClL\Ords\05-06 Ords\8.44Fireworks 1-17-06 draft.doc -- Page 6 of 11 Pages -- by the previous year's approved plot plan assuming all other provisions of this ordinance are complied with. If two or more applications for new stand locations are within the minimum four hundred foot distance requirement of each other, preference shall, be determined by a drawing conducted by the city manager or his/her designee. D. Except as expressly permitted by and in accordance with the provisions of Chapter 12.44 of this code, the sale, offer to sell, advertising or display of merchandise on any street or sidewalk in the city or roof of the fireworks stand is prohibited. E. All retail sales of safe and sane fireworks shall be permitted only from a temporary fireworks stand and the sale from any other building or structure is prohibited. The sale of any other items or commodities (e.g., consumables) in conjunction with the sale of safe and sane fireworks is strictly prohibited. F. No fireworks stand shall be located within one hundred feet of. any ,h'~'~d ¢~r ~r~d~r~r~r~4 gasoline storage or gasoline pump or any garage or within thirty feet of any other building, or within four hundred feet of any other fireworks stand, when measured closest point to closest point. G. Fireworks stands need not comply with the provisions of the building code of the city except that the building official shall have authority to require that stands be constructed in a manner which will reasonably ensure the safety of attendants and patrons. Fireworks stands may utilize shading devices such as canopies or awnings for the convenience of patrons subject to the following limitations: 1. The location and dimensions must be shown on the approved pl/ot plan; 2. Cannot cover or impede any public rights-of-way; 3. Must be free Standing (not anchored or tied to any public property such as light or electrical poles); 4. Must not cover the booth or any portion thereof; 5. Must meet all Uniform Fire Code specifications as adopted by the city, including flame retardancy and set-back requirements; 6. Must provide shade from the top only (no sides). Banners, signs or other items on or hanging from the awning or canopy are prohibited; 7. May not reduce the number, of parking spaces required by the traffic authority; and 8. Display or sale of fireworks from the awning or canopy area is prohibited. H. Fireworks stands shall be located only in a C-1 zoning district or a zoning district less restrictive than C-1, unless located upon property owned and occupied by a church and/or school, which church or school is either a legal or legal nonconforming use of such property. I. All temporary stands for the display and sale of fireworks shall obtain an electrical permit from the city building department, if electrical current is utilized or necessary. J. If a toilet is not immediately available during all open or sale hours of the fireworks stand, then an approved chemical one must be provided. S:\COUNClL\Ords\05-06 Ords\8.44Fireworks 1-17-06 draft.doc -- Page 7 of 11 Pages -- K. Each stand in excess of twenty-four feet in length must have at least two exits. Each stand in excess of forty feet in length must have at least three exits. L. Each stand shall be provided with not less than two 2A 10 BC-type fire extinguishers, underwriter approved, in good working order and easily accessible for use in case of fire. M. No person shall light, or cause or permit to be lighted, any fireworks or any other article or material within any such stand, or within fifty feet thereof. N. No smoking shall be allowed in any stand, nor within fifty feet thereof. "No smoking" signs shall be ·prominently displayed. O. All weeds and combustible material shall be cleared from the location of the stand, including a distance of at least twenty feet surrounding the stand. P. There shall be at least one adult in ·attendance during the open or sale hours of the fireworks stand. No minor under the age of eighteen shall be permitted in a · stand. Q. All permits must be posted in a conspicuous place. R. "~af~ a~d ~a~" F~ireworks_ shall ~a~ be sold only bc~cc~ thc hours cf h ,l~, ~ ~ Permittee shall strictly comply with all provisions of the State Fireworks Law (Sections 12500 et seq. of the Health and Safety Code). ~ ~ The fireworks stand shall be removed from the 'tempora~ location by ~elve noon on July 15, and all accompanying litter shall be cleared from said location on or before said time. ~. ~ Night watchman accommodations shall not be closer than ~enty-five feet from the fireworks stand. ~ ~, No fireworks shall be placed in any fireworks stand until a permit for sach stand has been issued by the city. W. ~ Any person who receives a notice to correct any violation of these regulations or any other condition of the permit, and who fails to correct such violation within the time prescribed in the notice, may be assessed a fee not exceeding the city's cost of reinspection in accordance with Section 3.70.040 of this code. S:~COUNCIL~Ords~05-06 Ords~8.44Fireworks 1-17-06 dra~.doc -- Page 8 of 11 Pages -- ~.___ Each fireworks stand shall promi,nently display and provide safety educational materials that have been approved by the city's fire chief. A copy of the required materials shall be provided by the Bakersfield fire department. Required materials shall be paid for by the applicant and dislributed with each fireworks sale. ¥._ All enforcement of the provisions Iof this chapter may be cor~duct~d 8.44.050 Revocation. , Any permit issued pursuant to this chapterIshall be immediately revoked by the city manager or his designee whenever he finds: ~ A. That misrepresentations were made 6n the application; or B. That any of the terms or conditions of said permit have been violated, or that the business has been operated in violation of~ local, state or federal law. 8.44.060 Appeal. I A. Should any applicant be dissatisfied ~w~th the decision of the city manager or his designee not to grant a permit or to revoke 'a permit, then said applicant may, no later than ten days after notice of such decision i§ deposited in the United States mail, addressed to the applicant or permittee at the address provided on the application, make written objection to the city council setting lforth the grounds for dissatisfaction, whereupon the council shall hear said objection ,S at a regular meeting no later than three weeks following the filing of the objection with the city clerk. The applicant shall be given written notice no less than three days prior to said hearing. The council may, upon said hearing, sustain, suspend or overrule the decision of the city manager or his designee, which decision shall be final and' conc!us~ve. B. Pending the hearing before the council, the decision of the city manager or his designee shall remain in full force and effecti and any reversal thereof by the city council shall not be retroactive but shall take effect as of the date of the council's 'decisions. L S:\COUNClL\Ords\05-06 Ords\8.44Fireworks 1-17-06 draft.doc -- Page 9 of 11 Pages -- SECTION 2. This Ordinance shall be posted in accordance with the provisions of the Bakersfield Municipal Code and shall become effective thirty (30) days from and after the date of its passage. --oo0oo-- S:\COUNCIL\Ords\05-06 Ords\8.44Fireworks 1-17-06 draft.doc -- Page 10 of 11 Pages -- I HEREBY CERTIFY that the foregoing Ordinance was passed and adopted by the Council of the City of Bakersfield at a regular meeting thereof held on , by the following vote: AYES: COUNCILMEMBER MAGGARD, CARSON, BENHAM, COUCH, HANSON, SULLIVAN, SCRIVNER NOES: COUNCILMEMBER. ABSTAIN: COUNClLMEMBER ABSENT: COUNClLMEMBER CITY CLERK and EX OFFICIO of the Council of the City of Bakersfield APPROVED: By: HARVEY L. HALL, Mayor CITY OF BAKERSFIELD APPROVED AS TO FORM: VIRGINIA GENNARO City Attorney By:, ALLEN M. 'SHAW Deputy City Attorney AMS:Isc S:\COUNClL\Ords\05-06 Ords\8.44Fireworks 1-17-06 draft.doc -- Page 11 of 11 Pages -- ORDINANCE NO. AN ORDINANCE AMENDING SECTIONS 15.64.036, 15.64.350 AND 15.64.480 OF .THE BAKERSFIELD -. MUNICIPAL CODE RELATING TO MISCELLANEOUS REGULATIONS OF THE UNIFORM FIRE CODE BE IT ORDAINED by the Council of the City of Bakersfield as follows: $[ECV~©N 1. Section 15.64.036 of the Bakersfield Municipal Code is hereby amended to read as follows: 15.64.036 Section 103.4.1 amended--Compliance orders and notices. Section 103.4.1.1, Compliance Orders and Notices, of the Uniform Fire Code is amended to read as follows: General. When the chief finds any buildings, premises, vehicle, storage facility, er outdoor area ~r ~ ~f~ f~ af~r~r~ti~r~d that is in violation of this code, the chief is authorized to issue administrative compliance orders requiring that the violation be corrected and imposing an administrative penalty, in accordance with the following: 1. In establishing a penalty amount and ordering that the violation be corrected pursuant to this section the chief shall take into consideration the nature, circumstances, extent, and gravity of the violation, the violators past and present efforts to prevent, abate, or clean up conditions posing a threat to the public health, or safety or the environment, the violator s ability to pay the penalty, and the deterrent effect that the imposition of the penalty would have on both the violator and the regulated community. 2. All administrative penalties collected from actions brought by the chief pursuant to this section shall be deposited into a special account that shall be expended to fund the activities of the prevention services division in enforcing this code. 3. The chief shall consult with the district attorney, county counsel, or city attorney on the development of policies to be followed in exercising the authority delegated pursuant to this section as it relates to the authority of the chief to issue orders. S:\COU NClL\Ords\05-06 Ords\15.64.021MiscRegFireCodePenaltyrev2.doc -- Page 1 of 4 Pages -- EXCEPTION: This section does not cio any of the following: 1. Otherwise affect the authority of the chief to take any other action authorized by any other provision of law, except the chief shall not require a person to pay a penalty pursuant to this section and pursuant to a local ordinance for the same violation. 2. Restrict the power of a city attorney, district attorney, county counsel, or the Attorney General to bring, in the name of the people of California, any criminal proceeding otherwise authorized by law. 3. Prevent the chief from cooperating with or participating in a proceeding specified in paragraph (2). SECT~©N 2. Section 15.64.350 of the Bakersfield Municipal 'Code is hereby amended to read as follows: 15.64.350 Duty to enforce code--Operational authority The Fire Code arid Cha~.pt~r 8.44 shall be enforced by the fire agency with jurisdictional responsibility for the area as defined in the memorandum of understanding between the city of Bakersfield and the county of Kern, ^ ....... * ~'"-. · ,~ .............. ~ i~ ~f'rf®cf~ at tlh® ti~ of~ ~fol~®~t. Such enforcement shall be under the supervision of the chief of the fire department within such jurisdictional responsibility who shall detail or direct members of that agency'__s fire department in the enforcement of the Fire Code. SECTION 3. Section 15.64.480 of the Bakersfield Municipal Code is hereby amended to read as follows: 15.64.480 Violation--Penalty. I~zc~..~t as ~rovidlad h~r~'~i~ A~ny person, firm or corporation convicted of violating any of the provisions of this code, or for failing to comply with any notice or order given pursuant to this chapter, shall be punishable by a fine of not more than five hundred~ollars ($500) or by imprisonment in the county jail for a period of not more than six months, or by both such fine and imprisonment. Th~ ~a~u~ ~a~t~ ~r a S:\COUNCIL\Ords\05-06 Ords\15.64.021 MiscRegFireCodePenaltyrev2.doc -- Page 2 of 4 Pages -- This Ordinance shall be posted in accordance, with the provisions of the Bakersfield Municipal Code and shall become effective thirty (30) days from and after the date of its passage. .- .... ooOoo ..... S:\COUNCIL\Ords\05-06 Ords\15.64.021 MiscRegFireCodePenaltyrev2.doc -- Page 3 of 4 Pages -- I HEREBY CERTIFY that the foregoing Ordinance was passed and adopted by the Council of the City of Bakersfield at a [egular meeting thereof held on , by the following vote: AYES: COUNCILMEMBER MAGGARD, CARSON, BENHAM, COUCH, HANSON, SULLIVAN, SCRIVNER NOES: COUNClLMEMBER ABSTAIN: COUNClLMEMBER ABSENT: COUNClLMEMBER CITY CLERK and EX OFFICIO of the Council of the City of Bakersfield APPROVED: By: HARVEY L. HALL, Mayor CITY OF BAKERSFIELD APPROVED AS TO FORM: VIRGINIA GENNARO City Attorney By: ALLEN M. SHAW Deputy City Attorney AMS:Isc S:\COU NClL\Ords\05-06 Ords\15.64.021 MiscRegFireCodePenaltyrev2.doc -- Page 4 of 4 Pages -- ORDINANCE NO. AN ORDINANCE OF THE COUNCIL OF THE CITY OF BAKERSFIELD AMENDING CHAPTER 8.44 OF THE BAKERSFIELD MUNICIPAL CODE RELATING TO FIREWORKS. BE IT ORDAINED by the Council of the City of Bakersfield as follows: SECTION 1. Chapter 8.44 of the Bakersfield Municipal Code is hereby amended to read as follows: Chapter 8.44 FIREWORKS Sections: 8.44.010 Definitions. 8.44.020 Permit required. 8.44.025 Effective dates. 8.44.030 Application - Issuance- Fee. 8.44.035 Application - Issuance- Fee. 8.44.040 Regulations. 8.44.050 Revocation. 8.44.060 Appeal. 8.44.070 Penalty. 8,44.010 Definitions. Whenever used in this chapter, unless a different meaning clearly appears from the context, the words set out in this section shall have the following meanings: A. "Applicant" means those persons defined in Section 8.44.030(A)(1) through H-} B. "Person" means any individual, partnership, group, corporation or association of any nature whatsoever. 8.44.020 Permit required. It is unlawful for any person to sell or offer for sale or expose for sale within the city any fireworks in violation of this chapter or without having a valid permit in accordance with the provisions of this chapter. 8.44.025 Effective dates. Not withstanding anything to the contrary in Section 8.44.030, Section 8.44.030 shall be effective through July 15, 2006. All organizations issued a fireworks permit in C:\DOCUME~1\jparks\LOCALS~1\Temp\8.44Fireworks 1-30-06 draft.doc -- Page 1 of 11 Pages -- 2005 under Section 8.44.030 shall be eligible to reapply for a fireworks permit through July 15, 2006. 8.44.030 Application--Issuance--Fee. A. A permit for the sale of safe and sane fireworks may not be issued except to the following applicants: 1. A nonprofit organization or corporation organized and existing primarily for veteran, patriotic, religious, welfare, charitable or civic-betterment purposes, organized and established in the city at least one year prior to the filing of application for permit under this chapter and having a bona fide membership of at least thirty-five members. The organization must be one which provides direct and regular community services and benefits to the citizens of the city. A local generally recognized nonprofit organization is eligible to submit one application. Each educational and/or religious organization is eligible to submit one application (signed by the local recognized leader of the organization). 2. Retail (for profit) business establishments which have, for a period of at least one year prior to the filing of an application for permit under this chapter, held a valid business tax certificate issued by the city under Chapter 5.02 of this code; provided, no such permit shall be issued to any such retail business establishment unless such establishment was issued a permit the previous year. 3. Those applicants having first obtained a permit or license from the State Fire Marshall under Part 2, Division 11 of the Health and Safety Code of this state. B. All recipients of fireworks permits except those specifically exempted in subsection C of this section, shall be selected by a drawing (by lot) conducted by the city manager or his/her designee not later than April 10 of each year. C. The total number of fireworks permits to be issued shall not exceed one permit per four thousand population, or portion thereof, in the city, as set forth in the prior calendar year annual report of the State Department of Finance, but not less than seventy-five; provided, however, any person applying for a fireworks permit who had such permit in 1994 and also in each subsequent year shall be issued a permit if otherwise qualified without being included in the drawing, notwithstanding the fact that such issuance may increase the number of permits to more than that allowed herein. D. Applications for fireworks permits shall be submitted by the "applicant" (as opposed to the fireworks vendor) commencing March 1 through March 30 of each year. No applications shall be accepted by the city after March 30 of each year. Applications for the drawing referenced in subsections B and C of this section need not include the state sales tax number nor will require items 3 through 8 of the application form. Those applicants sUccessful in the drawing shall have until May 15 to complete their applications. E. Except as modified by subsection D of this section, applications for fireworks permits shall be made on forms to be furnished by the city manager or his designee, shall be signed under penalty of perjury by the applicant and shall require the following information and documents: C:\DOCUME-1\jparks\LOCALS-1\Temp~8.44Fireworks 1-30-06 draft.doc -- Page 2 of 11 Pages -- 1. The name, address and telephone number of the nonprofit organization or retail business establishment for which application is made; 2. The applicant's business tax certificate number if it is a retail business establishment, and the name and address of all owners of such business; 3. The location of the proposed fireworks sales; 4. The purpose of the nonprofit organization or corporation including the services provided to the citizens of the city, the number of citizens within the city the organization serves; the approximate date of its establishment in the city; its principal and permanent meeting place in the city; the total number of its local membership; the names and addreSses of its officers; 5. A plot plan, showing the location of the temporary fireworks stand, utilities, location of permanent and temporary structures, curb cuts and/or driveways and identifying the nearest available sanitary facilities, and fire hydrants. For those applicants who were issued a fireworks permit for the preceding year, the plot plan must be submitted with the application package. For those applicants successful in the drawing, plot plans must be submitted by May 15 of each year. Plot plans will be approved or rejected by the fire department by June 15. Amendment will not be permitted to any plot plan rejected subsequent to the March 30 application deadline for renewal permits or the May 15 deadline for successful drawing applicants, except to correct any violation of the minimum distance separation as required by Section 8.44.040F; 6. A written authorization from the owner of the location or person in lawful possession thereof, if other than the applicant, for the locating of the business upon his or her property; 7. Evidence, satisfactory to the city manager or his designee, of (1) general liability insurance providing coverage on an occurrence basis for bodily injury, include(ling death of one or more persons, property damage and personal injury, with limits as required by the city; and (2) workers' compensation, with statutory limits and employers liability insurance with limits as required by the city. All policies required of the applicant hereunder shall be primary insurance as to the city, its mayor, council, officers, agents, employees and volunteers and any insurance or self-insurance maintained by the city, its mayor, council, officers, agents, employees and volunteers shall be considered excess insurance over and above the applicant's insurance and shall not contribute with it. The applicants shall save, hold harmless and indemnify the city, its officers, agents, employees and volunteers from all claims, demands, damages, judgments, costs or expenses in law or equity that may at any time arise from or is any way related to any work performed by applicant, his agents or employees under the terms of any permit issued under this chapter; 8. Cash bond in the sum of one hundred dollars, to be forfeited to the city in the event the permittee fails to remove said stand, equipment and rubbish from the premises upon which the stand is located before twelve noon on July 15 of the year for which said permit is granted. The cash bond shall be returned to the applicant upon full performance of the requirements of this chapter; C:\DOCUME-1\jparks\LOCALS-1\Temp\8.44Fireworks 1-30-06 draft.doc -- Page 3 of 11 Pages -- 9. Approval from the public works department of the city that operation at the fireworks stand at the proposed location will not present any substantial hazard to vehicular or pedestrian traffic. F. Location of temporary stands may not be changed after an application is filed except as required by the city, or where there is evidence of change in property ownership or management and prior approval or consent has been revoked by the new owners or managers. G. No one organization eligible to receive a permit may receive more than one permit for fireworks sales during any one calendar year. H. All permits issued under this chapter shall remain in effect from noon on July 1 to noon on July 5 unless earlier suspended or revoked. I. All applicants for permits, whether selected by drawing or not, shall pay a non-refundable fee, on or before March 30 of each year, not to exceed the cost of processing any such application. All successful applicants for permits shall pay a fee, on or before May 15 of each year, not to exceed the full cost of inspecting and enforcing such business. All fees shall be established as set forth in Chapter 3.70 of this code. J. Permits may be issued with conditions to ensure that the business will be operated in a safe and legal manner, will not disturb the peace and quiet of the neighborhood and will not constitute an undue burden on city resources. K. This entire section shall sunset at midnight on July 15, 2006. 8.44.035 Applicationmlssuance--Fee. A. On July 16, 2006, and thereafter, a permit for the sale of safe and sane fireworks may not be issued except to a nonprofit organization or corporation organized and existing primarily for veteran, patriotic, religious, welfare, charitable or civic- betterment purposes, organized and established in the city at least one year prior to the filing of application for permit under this chapter and having a bona fide membership of at least thirty-five members. The organization must be one which provides direct and regular community services and benefits to the citizens of the city. A local generally recognized nonprofit organization is eligible to submit one application. Each educational and/or religious organization is eligible to submit one application (signed by the local recognized leader of the organization). B. All recipients of fireworks permits shall be selected by a drawing (by lot) conducted by the city manager or his/her designee not later than April 10 of each odd year. Each recipient successful in the odd year drawing shall be eligible to reapply for a fireworks permit the following year. Unsuccessful applicants may reapply for a fireworks permit the next odd year. C. The total number of fireworks permits to be issued shall not exceed one permit per four thousand population, or portion thereof, in the city, as set forth in the prior calendar year annual report of the State Department of Finance, but not less than seventy-five. D. Applications for fireworks permits shall be submitted by the "applicant" (as opposed to the fireworks vendor) commencing March 1 through March 30 of each year. No applications shall be accepted by the city after March 30 of each year. Applications C:\DOCUME~1\jparks\LOCALS~1\Temp\8.44Fireworks 1-30-06 draft.doc -- Page 4 of 11 Pages -- for the drawing referenced in subsections B and C of this section need not include the state sales tax number nor will require items 3 through 8 of the application form. Those applicants successful in the drawing shall have until May 15 to complete their applications. E. Except as modified by subseCtion D of this section, applications for fireworks permits shall be made on forms to be furnished by the city manager or his designee, shall be signed under penalty of perjury by the applicant and shall require the following information and documents: 1. The name, address and telephone number of the nonprofit organization e¢ ,-,~*~;I I~, ,o; ...... ,',-~F,I;oI-~,-~,~,,~* fr~r ~hirh application is made; 2. The applicant's business tax certificate number if it !s ~ ,-ct~!! bus!ness 3. The location of the proposed fireworks sales; 4. The purpose of the nonprofit organization or corporation including the services provided to the citizens of the city, the number of citizens within the city the organization serves; its principal and permanent meeting place in the city; the approximate date of its establishment in the city; the total number of its local membership; the names and addresses of its officers; 5. A plot plan, showing the location of the temporary fireworks stand, utilities, location of permanent and temporary structures, curb cuts and/or driveways and identifying the nearest available sanitary facilities, and fire hydrants. For those applicants who were issued a fireworks permit for the preceding year, the plot plan must be submitted with the application package. For those applicants successful in the drawing, plot plans must be submitted by May 15 of each year. Pict plans will be approved or rejected by the fire department by June 15. Amendment will not be permitted to any plot plan rejected subsequent to the March 30 application deadline for renewal permits or the May 15 deadline for successful drawing applicants, except to correct any violation of the minimum distance separation as required by Section 8.44.040F; 6. A written authorization from the owner of the location or person in lawful possession thereof, if other than the applicant, for the locating of the business upon his or her property; 7. Evidence, satisfactory to the city manager or his designee, of (1) general liability insurance providing coverage on an occurrence basis for bodily injury, includeding death of one or more persons, property damage and personal injury, with limits as required by the city; and (2) workers' compensation, with satisfactory limits and employers liability insurance with limits as required by the city. All policies required of the applicant hereunder shall be primary insurance as to the city, its mayor, council, officers, agents, employees and volunteers and any insurance or self-insurance maintained by the city, its mayor, council, officers, agents, employees and volunteers shall be considered excess insurance over and above the applicant's insurance and shall not contribute with it. The applicants shall save, hold harmless and indemnify the city, its officers, agents, employees and volunteers from all claims, demands, judgments, costs or expenses in law or equity that may at any time arise from or is any C:\DOCUME~l\jparks\LOCALS~1\Temp\8.44Fireworks 1-30-06 draft.doc -- Page 5 of 11 Pages -- way related to any work performed by applicant, his agents or employees under the terms of any permit issued under this chapter; 8. Cash bond in the sum of one hundred dollars, to be forfeited to the city in the event the permittee fails to remove said stand, equipment and rubbish from the premises upon which the stand is located before twelve noon on July 15 of the year for which said permit is granted. The cash bond shall be returned to the applicant upon full performance of the requirements of this chapter; 9. Approval from the public works department of the city that operation at the fireworks stand at the proposed location will not present any substantial hazard to vehicular or pedestrian traffic. F. Location of temporary stands may not be changed after an application is filed except as required by the city, or where there is evidence of change in property ownership or management and prior approval or consent has been revoked by the new owners or managers. G. No one organization eligible to receive a permit may receive more than one permit for fireworks sales during any one calendar year. H. All permits issued under this chapter shall remain in effect from noon on July 1 to noon on July 15 unless earlier suspended or revoked. I. All applicants for permits shall pay a non-refundable fee, on or before March 30 of each year, not to exceed the cost of processing any such application. All successful applicants for permits shall pay a fee, on or before May 15 of each year, not to exceed the full cost of inspecting such business,-ac,,~L-enforcing ~ this code and providing public information, as well as safety education. All fees shall be established as set forth in Chapter 3.70 of this code. J. Permits may be issued with conditions to ensure that the business will be operated in a safe and legal manner, will not disturb the peace and quiet of the neighborhood and will not constitute an undue burden on city resources. 8.44.040 Regulations. A. Those fireworks which are classified as "dangerous" fireworks under Section 12505 of the California Health and Safety Code are prohibited, except that such fireworks as are defined and classified as "safe and sane fireworks" in Section 12529 of the California Health and Safety Code may be displayed, sold and used pursuant to the provisions of this chapter and not otherwise. Notwithstanding anything to the contrary, "Piccalo Pete" type and "Ground Flower" type fireworks shall not be used, displayed, or sold separately or in combination with otherwise allowed fireworks. B. No permit holder shall shout, make any outcry, blow a horn, ring a bell or use any other sound device including any loudspeaker, radio or amplifying system where sound of sufficient volume is emitted or produced there from capable of being plainly heard upon the streets, alleys, parks or other public places. C. Any permit issued pursuant to this chapter shall be nontransferable, and shall be valid only as to the applicant and location provided on the application for such permit, or as set forth in Section 8.44.030F or 8.44.035F. Locational preference shall be given for the consecutive use of a particular location by the applicant as established C:\DOCUME-l\jparks\LOCALS~1\Temp\8.44Fireworks 1-30-06 draft.doc -- Page 6 of 11 Pages -- by the previous year's approved plot plan assuming all other provisions of this ordinance are complied with. If two or more applications for new stand locations are within the minimum four hundred foot distance requirement of each other, preference shall be determined by a drawing conducted by the city manager or his/her designee. D. Except as expressly permitted by and in accordance with the provisions of Chapter 12.44 of this code, the sale, offer to sell, advertising or display of merchandise on any street or sidewalk in the city or roof of the fireworks stand is prohibited. E. All retail sales of safe and sane fireworks shall be permitted only from a temporary fireworks stand and the sale from any other building or structure is prohibited. The sale of any other items or commodities (e.g., consumables) in conjunction with the sale of safe and sane fireworks is strictly prohibited. F. No fireworks stand shall be located within one hundred feet of any above- o_round or under-ground gasoline storage or gasoline pump or any garage or within thirty feet of any other building, or within four hundred feet of any other fireworks stand, when measured closest point to closest point. G. Fireworks stands need not comply with the provisions of the building code of the city except that the building official shall have authority to require that stands be constructed in a manner which will reasonably ensure the safety of attendants and patrons. Fireworks stands may utilize shading devices such as canopies or awnings for the convenience of patrons subject to the following limitations: 1. The location and dimensions must be shown on the approved plot plan; 2. Cannot cover or impede any public rights-of-way; 3. Must be free standing (not anchored or tied to any public property such as light or electrical poles); 4. Must not cover the boOth or any portion thereof; 5. Must meet all Uniform Fire Code specifications as adopted by the city, including flame retardancy and set-back requirements; 6. Must provide shade from the top only (no sides). Banners, signs or other items on or hanging from the awning or canopy are prohibited; 7. May not reduce the number of parking spaces required by the traffic authority; and 8. Display or sale of fireworks from the awning or canopy area is prohibited. H. Fireworks stands shall be located only in a C-1 zoning district or a zoning district less restrictive than C-1, unless located upon property owned and occupied by a church and/or school, which church or school is either a legal or legal nonconforming use of such property. I. All temporary stands for the display and sale of fireworks shall obtain an electrical permit from the city building department, if electrical current is utilized or necessary. J. If a toilet is not immediately available during all open or sale hours of the fireworks stand, then an approved chemical one must be provided. C:\DOCUME~1\jparks\LOCALS-1\Temp~8.44Fireworks 1-30-06 draft.doc -- Page 7 of 11 Pages -- K Each fireworks stand; ........ ~ *' .... *" ~ .... ~""* ;" ~"""*~' must have at least two exits. Each fireworks stand in excess of forty feet J._12,.,J.,9~:)JZ~ in length must have at least three exits. Exits shall have a minimum width of thirty inches (76 mm). An aisle with a minimum width of thirty inches (76 mm) shall lead to each .exit. Exit doors shall be operable from the inside without the use of a key or any special knowledge or effort. L. Each stand shall be provided with not less than two 2A 10 BC-type fire extin, guishers, underwriter approved, in good working order and easily accessible for use ~n case of fire. M. No person shall light, or cause or permit to be lighted, any fireworks or any other article or material within any such stand, or within fifty feet thereof. N. No smoking shall be allowed in any stand, nor within fifty feet thereof. "No smoking" signs shall be prominently displayed. O. All weeds and combustible material shall be cleared from the location of the stand, including a distance of at least twenty feet surrounding the stand. P. There shall be at least one adult in attendance during the open or sale hours of the fireworks stand. No minor under the age of eighteen shall be permitted in a stand. Q. All permits must be posted in a conspicuous place. R. "Safe and sane" Ffireworks= ..,°~'~",..,, may be sold only .........~,~"~ ....., *~,., ,.. ,~,-,..~, ..... ....,~ ~""'~ ..... o% ', ,~,," *,. *~.,.-~ .... cc" '-" ~,,~,, c as follows: 1_. On July 1 between the hours of 12:00 noon and 10:00 p.m' 2, On July 2 and Ju]¥ 3 between the hours of 9:00 a.rn and 10:00 p.m 3_. On July 4 between the hours of 9:00 a.m. and 12:01 a.m. of the next day. S. Except for licensed pyrotechnicians, "safe and sane" fireworks may be used only on the following dates and times' 1_. On July 1 between the hours of 12:00 noon and !0:00 ~..m, 12:01 a.m of the next day, 2_. On July 2 and July 3 between the hours of 9:00 a.m and !0:00 p..m ,12:01 a.m. of the next day. 3. On July 4 between the hours of 9:00 a.m, and 12:0~ 30 a.m. of tho next day. 4. On December 31st. between the hours of-l-l- 12:00 ~m noon and 12:30 a.m of the next day. S~. T_. Permittee shall strictly comply with all provisions of the State Fireworks Law (Sections 12500 et seq. of the Health and Safety Code). ~ U. The fireworks stand shall be removed from the temporary location by twelve noon on July 15, and all accompanying litter shall be cleared from said location on or before said time. U.V. Night watchman accommodations shall not be closer than twenty-five feet from the fireworks stand. C:\DOCUME~l\jparks\LOCALS~l\Temp\8.44Fireworks 1-30-06 draft.doc -- Page 8 of 11 Pages -- ~. W. No fireworks shall be placed in any fireworks stand until a permit for such stand has been issued by the city. W. X__,. Any person who receives a notice to correct any violation of these regulations or any other condition of the permit, and who fails to correct such violation within the time prescribed in the notice, may be assessed a fee not exceeding the city's cost of reinspection in accordance with Section 3.70.040 of this code. ~.Y'. Each fireworks stand shall prominently display and provide safety educational materials that have been approved by the city's fire chief. A copy of the required materials shall be provided by the Bakersfield fire department. Required materials shall be paid for by the applicant and distributed with each fireworks sale. ¥. Z_.,. All enforcement of the provisions of this chapter may be conducted pursuant tO Chapter 15.64. *~'~'-" "-'~' ?'= ~ I,~if,-,rn~ F~,c r,,-,,~,~ 8.44.050 Revocation. Any permit issued pursuant to this chapter shall be immediately revoked by the city manager or his designee whenever he finds: A. That misrepresentations were made on the application; or B. That any of the terms or conditions of said permit have been violated, or that the business has been operated in violation of local, state or federal law. 8.44.060 Appeal. A. Should any applicant be dissatisfied with the decision of the city manager or his designee not to grant a permit or to revoke a permit, then said applicant may, no later than ten days after notice of such decision is deposited in the United States mail, addressed to the applicant or permittee at the address provided on the application, make written objection to the city council setting forth the grounds for dissatisfaction, whereupon the council shall hear said objections at a regular meeting no later than three weeks following the filing of the objection with the city clerk. The applicant shall be given written notice no less than three days prior to said hearing. The council may, upon said hearing, sustain, suspend or overrule the decision of the city manager or his designee, which decision shall be final and conclusive. B. Pending the hearing before the council, the decision of the city manager or his designee shall remain in full force and effect and any reversal thereof by the city council shall not be retroactive but shall take effect as of the date of the council's decisions. 8.44.70 Penalty. Violation of any provision of this chapter shall be punished as provided in Section 15.64.480, or any other manner permissible b.v law. C:\DOCUME-1\jparks\LOCALS-1\Temp\8.44Fireworks 1-30-06 draft.doc -- Page 9 of 11 Pages -- SECTION 2. This Ordinance shall be posted in accordance with the provisions of the Bakersfield Municipal Code and shall become effective thirty (30) days from and after the date of its passage. --oo0oo-- C:\DOCUME~1\jparks\LOCALS~1\Temp\8.44Fireworks 1-30-06 draft.doc -- Page 10 of 11 Pages -- I HEREBY CERTIFY that the foregoing Ordinance was passed and adopted by the Council of the City of Bakersfield at a regular meeting thereof held on , by the following vote: AYES: COUNCILMEMBERCARSON, BENHAM, MAGGARD, COUCH, HANSON, SULLiVAN, SCRiVNER NOES: COUNCILMEMBER ABSTAIN: COUNCILMEMBER ABSENT: COUNCILMEMBER CITY CLERK and EX OFFICIO of the Council of the City of Bakersfield APPROVED: By: HARVEY L. HALL, Mayor CITY OF BAKERSFIELD APPROVED AS TO FORM: VIRGINIA GENNARO ' City Attorney By: ' ALLEN M. SHAW Deputy City Attorney AMS:Isc C:\DOCUME-1\jparks\LOCALS-1\Temp~8.44Fireworks 1-30-06 draft.doc -- Page 11 of 11 Pages -- 01/27/06 Dear Mayor Hall and Honored Council Members, We at Phantom Fireworks want to reaffirm our commitment to the City of Bakersfield and the Fire Department's need to curb the use of illegal, modified and any "Non-California Approved Safe and Sane" fireworks. We fully support increased enforcement and issuing administration fines of $500.00 to 1500.00. It is our hope that you will reconsider the ban on Whistling and Ground Bloom items, brought about by the horrible incident in 2004. We would like to offer this information for your consideration. Approximate sales of Whistling items in Bakersfield and Kern County by year and quantity. 2002 o 310,500 2003 - 31'5,000 2004 - 302,175 2005 - 243,000 (Sold in Kern County only) A few unthinking individuals modified a whistling device into an explosive weapon. These individuals could have constructed this same device using the gunpowder from a readily available shotgun shell. Had they done so, would similar opinions & actions been taken towards shotgun shells? When Whistling items are used as designed, they are quite safe. It is a natural human response after a disaster, to take measures to protect others from a similar incident. Perhaps thepassions of the moment lead to this ban. We hope that if you look at the sales numbers for this item you may conclude, whistling items do not pose much of a threat. Approximate sales of Ground Bloom items in Bakersfield and Kern County by year and quantity. 2002 - 787,500 2003 - 567,000 2004 - 513,000 2005 - 443,700 (Sold in Kern County only) We do not understand why this item was included in the sales ban along with the Whistling Items. There are no cases of this item ever causing personal injury or property loss by fire according to either the Bakersfield or Kern County Fire Departments. It is our opinion these items should be reinstated for sale, allowing the ENFORCEMENT TEAMS patrolling the City and County to concentrate on illegal, modified and all "Non-California Approved Safe and Sane" fireworks. Thank you, Phantom Fir~rl~ 2401 E. Brun~age Ln. Unit C Bakersfield, CA 93307 PH: 661-327-9930 FAX: 661-327-9938 RECEIVED DEC 2 9.2005 ITY MANAGER'S OFFICE OFFICE OF THE CITY ATTORNEY MEMORANDUM December 29, 2005 TO: HONORABLE MAYOR AND COUNCILMEMBERS · · . / - SUBJECT: NEW LAW RE: COUNCIL COMPENSATION AB 1234 (Salinas) becomes effective January 1, 2006. This bill requires cities (including charter cities) which provide Councilmembers reimbursement for expenses, to adopt a wdtten policy which sets forth the parameters under which such reimbursement may be received and what expenses qualify. In addition, the new law requires that Councilmembers who are eligible for reimbursement complete a two-hour ethics class by January 1, 2007. The relevant sections of the amendments to the Government Code are attached for your review. City staff is in the process of collecting sample resolutions and policies being considered by other cities. This issue will be placed on the January 11,2006 City Council meeting and staff will be recommending that this matter be referred to the Legislative and Litigation Committee for immediate review and action. In the meantime, please feel free to call if you have any questions. VG:do/Isc Attachment cc: AlaH Tafid~/i::'Cit~"M~inager Pamela McCarthy, City Clerk S:\COUNCIL\MEMOS\05-06 Memos~lew Law-Council Compensation,doc Assembly Bill No. 1234 CI-L&PTER 700 An act to amend Sections 25008 and 36514.5 of, and to add Article 2.3 (commencing with Section 53232) and Article 2.4 (commencing with Section 53234) to Chapter 2 of Part 1 of Division 2 of Title 5 of, the Government Code, to amend Sections 6060 and 7047 of the Harbors and Navigation Code, to amend Sections 2030, 2851, 4733, 4733.5, 6489, 9031, 13857, 13866, and 32103 of the Health and Safety Code, to amend Section 1197 of the Military and Veterans Code, to amend Sections 5536. 5536.5, 5784.15, and 9303 of the Public Resources Code, to amend Sections 11908, 11908.1, 11908.2, 16002, and 22407 of the Public Utilities Code, and to amend Sections 20201, 21166, 30507, 30507.1, 34741, 40355, 50605, 55305, 56031, 60143, 70078, 71255, and 74208 o£ and to add Section 20201.5 to, the Water Code, relating to local agencies. [Approved by Governor October 7, 2005. Filed with Secretax'y of State October 7, 2005.] L~SL^T~v~_ COU.XSEL'S D~a~sr AB 1234, Salinas. Local agencies: compensation and ethics. Existing law provides for the establishment and operations of cities, counties, cities and cotmties, districts, and other local ~overnment agencies, the composition of their governing bodies, and the ~ayment of governing body members for attending meetings and performing other duties, and prescribes conflicts of interest. This bill would requixe a local agency that provides reimbursement for expenses to members of its legislative body to adopt a written policy on the duties for which le~slative body members may receive compensation. other than meetings ~f the legisiative body or an advisor' body or attendance at a conference or organized educational activity. The bill would require such a governing body to adopt a x~xitten policy concerning what occurrences qualify a member to receive reimbursement of expenses for travel, meals, and lodging and would impose related requirements, including the filing of expense reports, which would be public records. This bill would also require that if a local agency provides any type of compensation, salary, or stipend to, or reimburses the expenses of, a member of the le~slative body. all local agency officials, except a member whose term of office ends before January l, 2007. in local agency service as of January 1, 2006. or thereafter receive training in ethics, as specified. This bill would provide that if any enti~' develops' criteria for the ethics training, then the Faix Political Practices Commission and the Attorney General shall be consulted regarding any proposed course content. This bill would specify, with respect to certain special districts, how a director's 9o Ch. 700 2 activities on a specific day are determined to be compensable and would make related changes. The people of the State of California do enact as follows: SECTION 1. Section 25008 of the Government Code is amended to read: 25008. Members shall be allowed their actual expenses in going to, attendance upon, and returning fi.om state association meetings and their actual and necessary traveling expenses when traveling outside their counties on official business. Reimbursement for these expenses is subject to Sections 53232.2 and 53232.3. SEC. 2. Section 36514.5 of the Government Code is amended to read: 36514.5. City cmmcil members may be reimbursed for actual and necessary expenses incurred in the performance of ot'fieial duties. Reimbursement for these expenses is subject to Sections 53232.2 and 53232.3. SEC. 3. Article 2.3 (commencing x~'ith Section 53232) is added to Chapter 2 of Part 1 of Division 2 of Title 5 of the Government Code, to read: Article 2.3. Compensation 53232. For the purposes of this article, the following terms have the following meanings: (a) "Governing body" means the board of superdsors in the case of a count)' or a city and county., the city council or board of trustees in the case of a city, and the board of directors or other governing body in the case of a special district. (b) "Legislative body" has the same meaning as specified in Section 54952. (c) "Local agency" means a city. count)', cit)' and count5', charter cits', charter county, charter city and county, or special district. (d) "Meeting" has the same meaning as specified in subdivision (a) of Section 54952.2. >o-a~. t. (a) When compensation is otherwise authorized by statute, a local agency may pay compensation to members of a le~slative body for attendance at the following occurrences: (1) A meeting of the legislative body. (2) A meeting of an advisory body. (3) A conference or organized educational actMty, conducted in compliance with subdivision (c) of Section 54952.2, including, but not limited to, ethics trainin,, required by Article 2.4 (commencing with Section --o (b) A local agency may pay compensation for attendance at occurrences ,: not specified in subdMsion (a) only if the governing body has adopted, in 9O 3 Ch. 700 a public meeting, a written policy specifying other types of occasions that constitute the performance of official duties for which a member of the legislative body may receive payment. (c) This section shall not apply to any local agency that pays compensation in the form of a salary to members of a le~slative body, including, but not limited to, those local agencies whose legislative bodies' compensation is subject to Section 36516 or 36516.1, subparagraph (B) or (C) of para~aph (2) of subdivision (a) of Section 21166 or Section 22840 of the Water Code, Section 11908.1 of the Public Utilities Code, Section 6060 of the Harbors and Navigation Code, or subdivision (b) of Section 1 or Section 5 of Article XI of the California Constitution. 53232.2. (a) When reimbursement is otherwise authorized by statute, a local agency may reimburse members of a legislative body for actual and necessary expenses incurred in the performance of official duties, including, but not limited to, activities described in Article 2.4 (commencing with Section 53234). (b) If a local agency reimburses members of a le~slative body for actual and necessary expenses incurred in the performance of official duties, then the governing body shall adopt a written policy, in a'public meeting, specifying the ~'pes of occurrences that qualify a member of the legislative body to receive reimbursement of expenses relating to travel, meals, lodging, and other actual and necessary expenses. (c) The policy described in subdMsion (b) may also specify the reasonable reimbursement rates for travel, meals, and lod~ng, and other actual and necessary expenses.. If it does not, the local agency shall use the Internal Revenue Ser¥ice rates for reimbursement of travel, meals, lodging, and other actual and necessary expenses as established in Publication 463, or any successor publication. (d) If the lodging is in connection with a conference or organized educational activity conducted in compliance with subdMsion (c) of Section 54952.2, including, but not limited to, ethics training required by Article 2.4 (commencing with Section 53234), lodging costs shall not exceed the maximum g'roup rate published by the conference or activity sponsor, provided that lodging at the group rate is available to the member of a legislative body at the time of booking. If the group rate is not available, the member of a legislative body shall use comparable lod~ng that is consistent with the requirements of subdivisions (c) and (e). (e) Members of the le~slative body shall use government and group rates offered by a provider of transportation or lod~ng sexMces for travel and lodging when available. (0 All expenses that do not fall within the adopted travel reimbursement policy or the Internal Revenue Service reimbttrsable rates as provided in subdivision (c). shall be approved by the governing body, in a public meeting before the expense is incttrred, except as provided in subdMsion (d). (g) This section shall not supersede any other laws establishing reimbursement rates for local agencies. - 90 Ch. 700 4 53232.3. (a) If a local agency reh'nburses members of a legislative body for actual and necessary expenses incurred in the performance of official duties, then a local agency shall provide expense report forms to be filed by the members of the legislative body for reimbursement for actual and necessary expenses incurred on behalf of the local agency in the performance of official duties. Reimbursable expenses shall include, but not be limited to, meals, lodging, and travel. (b) Expense reports shall document that expenses meet the existing policy, adopted pursuant to Section 53232.2, for expenditure of public resources. (c) Members of a legislative body shall submit expense reports within a reasonable time after incurring the expense, as determined by the legislative body, and the reports shall be accompanied by the receipts documenting each expense. (d) Members of a legislative body shall provide brief reports on meetings attended at the expense of the local agency at the next regular meeting of the legislative body. (e) All documents related to reimbursable agency expenditures are public records subject to disclosure under the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1). 53232.4. Penalties for misuse of public resources or falsifying expense reports in violation of expense reporting polices may include, but are not limited to, the following: (a) The loss of reimbursement privileges. (b) Restitution to the local agency. (c) Civil penalties for misuse of public resources pursuant to Section 8~14. (d) Prosecution for misuse of public resources, pursuant to Section 424 of the Penal Code. SEC. 4. Article 2.4 (commencing with Section 53234)'is added to Chapter 2 of Part I of Division 2 of Title 5 of the Government Code, to read: Article 2.4. Ethics Training 53234. For the purposes of this article, the following terms have the following meanings: (a) "Le~slative body" has the same meaning as specified in Section 54952. (b) "Local agency" means a city, county, city and cotmty, charter city, charter county, charter city and county, or special district. (C) "Local agency official" means the t'ollowine: (l) Any member of a local agency le~slative body or any elected local agency official who receives any type of compensation, salad, or stipend 9O $ Ch. 700 or reimbursement for actual and necessary expenses, incurred in the performance of official duties. (2) Any employee designated by a local agency legislative body to receive the training specified under this article. .(d) "Ethics laws" include, but are not limited to, the following: (l) Laws relating to personal financial gain by public servants, including, but not limited to, laws prohibiting bribery and conflict-of-interest laws. (2) Laws relating to claiming prerequisites of office, including, but not limited to. gift and travel restrictions, prohibitions against the use of public resources for personal or political purposes, prohibitions against gifts of public funds, mass mailing restrictions, and prohibitions against acceptance of free or discounted transportation by transportation companies. (3) Government transparency laws, including, but not limited to, financial interest disclosure requirements and open government laws. (4) Laws relating to fair processes, including, but not limited to, common law bias prohibitions, due process requirements, incompatible offices, competitive bidding requirements for public contracts, and disqualification fi-om participating in decisions affecting family members. 53235. (a) If a local agency provides any type of compensation, salary,, or stipend to a member of a legislative body, or provides reimbursement for actual and necessaD' expenses incurred by a member of a legislative body in the performance of official duties, then all local agency officials shall receive training in ethics purstmnt to this article. (b) Each local agency official shall receive at least two hours of training in general ethics principles and ethics laws relevant to his or her public service every two years. (c) If any entity develops curricula to satisfy the requirements of this section, then the Fair Political Practices Commission and the Attorney General shall be consulted regarding the sufficiency and accuracy of any proposed course content. W'hen reviewing any proposed course content the Fair Political Practices Commission and the Attorney General shall not preclude an entity from also including local ethics policies in the curricula. (d) A local agency or an association of local agencies may offer one or more training courses, or sets of self-study materials with tests, to meet the requirements of this section. These courses may be taken at home, in-person, or online. (e) All providers of training courses to meet the requirements of this article shall provide participants with proof of participation to meet the requirements of Section 53235.2. (f) A local agency shall provide information on training available to meet the requirements of this article to its local officials at least once annually. 53235.1. (a) Each local agency official in local agency ser¥ice as of January 1, 2006, except for officials whose term of office ends before Jamlary 1, 2007, shall receive the training required by subdivision (a) of 90 "Ch. 700 6 Section 53235 before January 1, 2007. Thereafter, each local agency official shall receive the training required by subdivision (a) of Section 53235 at least once every two years. (b) Each local agency official who commences service with a local agency on or after January 1, 2006, shall receive the training required by subdivision (a) of Section 53235 no later than one year from the first day of service with the local agency. Thereafter, each local agency official shall receive the training required by subdivision (a) of Section 53235 at least once every two years. (c) A local agency official who serves more than one local agency shall satisfy the requirements of this article once every two years without regard to the number of local agencies with which he or she serves. 53235.2. (a) A local agency that requires its local agency officials to complete the ethical training prescribed by this article shall maintain records indicating both of the following: (I) The dates that local officials satisfied the requirements of this article. (2) The entity that provided the training. (b) Notwithstanding any other provision of law, a local agency shall maintain these records for at least five years after local officials receive the training. These records are public records subject to disclosure under the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1). - S£~.-7-.-.-.-.-.-.-.-~.. 5ecnon 6060 or' the Harbors and Navigation Code is amended to read: 6060. The commissioners shall serve without salary, until the yearly ~oss income of the district, exclusive of taxes levied bv the district, exceeds twenty thousand dollars ($20,000) per year, when tine board may, by ordinance, fix their salaries, which shall not exceed the sum of six hundred dollars ($600) per month each. In addition to any salary received pursuant to this section, the commissioners shall be allowed any actual and necessary expenses incurred in the performance of their duties. Reimbursement for these expenses is subject to Sections 53232.2 and 53232.3 of the Government Code. SEC. 7. Section 7047 of the Harbors and Navigation Code is amended to read: 7047. Each director shall receiv~ a snm as mav be fixed by the board, not exceeding fifl~y dollars ($50) for each meeting ~fthe board attended by him or her, for not exceeding four meetings in any calendar month. A director may also receive traveling and other expenses incurred by him or her when performing duties for the district other than attending board meetings. For purposes of this section, the determination of whether a director's activities on any specific day are compensable shall be made pursuant to Article 2.3 (commencing with Section 53232) of Chapter 2 of Part 1 of Division 2 of Title 5 of the Government Code. Reimbursement 90 INSTITUTE FOR LOCAL GOVERNMENT New State Ethics Requirements for Local Officials: Frequently Asked Questions 1/11/06 Version What new laws took effect on January 1, 2006 relating to local officiat ethics? · AB 11' Relating to compensation of general law city council members and service on community redevelopment commissions; · AB 1234: Relating to expense reimbursement for local officials, ethics training and special district compensation; and · SB 11' Relating to revolving door restrictions for local officials (effective July 1, 2006). The January issue of Western City magazine has a summary of what these bills do. The following are some frequently asked questions about the bills. Ethics Training 1. What requirements does AB 1234 create regarding ethics training for local officials? The basic thrust of AB 1234 is to require covered officials (see next question) to take two hours of training in ethics principles and laws every two years) 2. Who is required to receive mandatory ethics training? Basically the requirement applies to those elected or appointed officials who are compensated for their service or reimbursed for their expenses.2 The specific trigger for ~ Cal. Gov't Code § 53235(a), (b). 2 The language is potentially confusing on this point. The new law says that if a local agency provides any type of compensation Or reimbursement for members of its legislative bodies, then all "local agency officials" must receive training. See Cal. Gov't Code § 53235(a). But the definition of "local agency official" means "any member of a local agency legislative body or any elected official who receives any type of compensation...or reimbursement for actual and necessary expenses incurred in the performance of official duties." See Cal. Gov't Code § 53234(c)(1). Institute for Local Government www.ca-ilq.or.q this requirement is whether the agency either compensates or reimburses expenses for members of any of its Brown Act covered bodies; if it does, then all elected and appointed "local agency officials" (as defined) must receive this training?. "Local agency official" means any member of a legislative body or any elected local agency official who receives compensation or expense reimbursement.4 "Local agency" means "a city, county, city and county, charter city, charter county, charter city and county, or special district."5 Thus the training requirement does not include agencies on which local officials serve (for example, redevelopment agency governing boards or joint powers agencies), although many such officials will likely be covered by virtue of their status with cities, counties and special districts. Note that it also does not include school districts. Note that local agencies also have the option of requiring certain employees to receive this training, s 3. Where are local officials going to get this training? Local agencies must provide covered officials with a list of options for satisfying this requirement at least once a year.7 Note that agencies are not required to provide the training themselves, although a number may choose to do so. A variety of organizations are gearing up to offer options to help local officials satisfy these requirements. The League and the Institute plan to help local agencies too. Note that the training can occur in-person, online or on a.self-study basis (read materials and take a test).8 For example, upcoming articles in Western City will provide self-study options for local officials. 4. How is the League of California Cities helping local agencies implement the ethics training aspect of the new law? The League and the Institute for Local Government are working on training courses and materials to affordably satisfy AB 1234's requirements. Most associations of local agencies are planning on offering such training at their respective conferences. The League is working with division leadership on offering these regionally as well. 3 Cal. Gov't Code § 53235(a) ("If a local agency provides any type of compensation, salary, or stipend to a member of a legislative body, or provides reimbursement for actual and necessary expenses incurred by a member of a legislative body in the performance of official duties, then all local agency officials shall receive training in ethics pursuant to this article"); § 53234(a) (defining legislative body by reference to the Brown Act, Government Code section 54952). 4 Cal. Gov't Code § 53234(c)(1 ). ~ Cal. Gov't Code § 53234(b). 6 Cal. Gov't Code § 53234(c)(2). 7 Cal. Gov't Code § 53235(0. 6 Cal. Gov't Code § 53235(d). Institute for Local Government www.ca-ilq.or.q The Institute also plans to develop self-study materials and has a grant to fund, partially, the development of an online course. The Institute is also in the process of developing "train-the-trainer" programs for in-house counsel and others who are interested in offering such training. The Institute may also offer lists of trainers who are interested in helping agencies satisfy this requirement. Watch for more information in P. riorit¥ Focus and on League listserves. 5. When will associations and others begin offering such training? It's not clear. The Attorney General and FPPC are in the process of adopting guidelines for course curriculum accuracy and sufficiency.9 The Fair Political Practices Commission has a draft regulation being circulated for comment relating'to how Political Reform Act-related ethics laws should be covered,l° The regulation is scheduled for discussion at the Commission's January 20 meeting. The Attorney General's office is working on draft guidelines as well. 6. What issues must AB 1234 ethics training programs address? The training must cover general ethics principles relating to public service and ethics laws.~ "Ethics laws" are defined as including:~2 · Laws relating to personal financial gain by public officials (including bribery and conflict of interest laws); · Laws relating to office-holder perks, including gifts and travel restrictions, personal and political use of public resources and prohibitions against gifts of public funds; i · Governmental transparency laws, including financial disclosure requirements and ,! open government laws (the Brown Act and Public Records Act); Ii '1 ~ · Law relating to fair processes, including fair contracting requirements, common law ~ bias requirements and due process. The Institute has materials in production to address the "general ethics principles" aspect of AB 1234 training. It's important to note that, given the breadth of the subjects that need to be covered, the goal of the training cannot be to teach local officials the law in each of these areas. Instead the goal needs to be to acquaint local officials with the fact that there are laws 9 See Cal. Gov't Code § 53235(c). lo See www.fppc.ca.gov/index.html?id=247&r_id=/legal/proposed_regs/18371 .htm. 11 Cal. Gov't Code § 53235(b). ~2 Cal. Gov't Code § 53234(d). 3 Institute for Local Government www.ca-ilcl.or_q that govern their behavior in each of these areas, to motivate officials to comply with such laws (among other things by explaining the consequences of missteps) and to alert them on when they need to seek the advice of qualified legal counsel when issues arise with respect to such laws. 7. Can AB 1234's ethics training requirements constitutionally apply to charter cities? Many city attorneys are not convinced that AB 1234 contains the necessary findings to make it applicable to charter cities, although the bill purports to apply to charter cities by including charter cities within the definition of local agency? However, a number of charter cities already have such training programs and/or think they would be helpful and hence, are voluntarily complying with the spirit of AB 1234. Such an approach may reflect well on a city and city officials should the local media inquire about city officials' compliance with AB 1234. 8. When is the deadline for officials currently in office to complete mandatory ethics training? Each local agency official in local agency service as of January 1, 2006 must receive ethics training by January 1, 2007. After that, the requirement is every two years.14 Officials whose term of office ends before January 1,2007 are excused? There may be clean-up legislation that extends this deadline further to accommodate some county supervisors whose terms expire on January 8, 2007.46 9. How often must local officials receive ethics training? Newly elected and appointed local agency officials must receive their first training within one year of commencing service? After that, the requirement is every two years? 10. What is the enforcement mechanism to assure that local officials receive such training? The new law is directory; there is no specific penalty for failing to complete the required training. However, the law creates a public relations enforcement mechanism. When local agency officials receive the training, they will be given proof of participation. 49 Copies of these certificates must be provided to the agency's custodian of records and Cal. Gov't Code § 53234(b). Cal. Gov't Code § 53235.1(a), (b). Cal. Gov't Code § 53235.1(a). See Cal. Gov't Code § 24200. Cal. Gov't Code § 53235.1 (b). Cal. Gov't Code § 53235.1(a), (b). Cal. Gov't Code § 53235.1(e). Institute for Local Government www.ca-il.q.or.q maintained as public records subject to disclosure to the media, the public and others for at least five years? Note: in addition to maintaining records on compliance with the minimum standards imposed by AB 1234, local agencies may also want to maintain records of any additional training local agency officials received. This will enable those inquiring to ascertain the agency's and individual's full scope of commitment to understanding the ethical and legal obligations associated with public service. Expense Reimbursement 1. What about AB 1234's requirements with respect to expense reimbursement? AB 1234 requires local agencies to adopt expense reimbursement policies that specify the kinds of activities that will be reimbursable.2~ (Note that the law says that ethics training is also reimbursable?) The trigger for this requirement is whether the local agency reimburses members of a legislative body for expenses incurred in the performance of their official duties; if the agency does, then the governing body must adopt the policy contemplated by AB 1234.23 The Institute for Local Government has developed a sample annotated expense reimbursement policy to help local officials with this task. The policy is available at www.ca-ilq .or,q/reimbursementpolicy. If a legislative body member wants to seek reimbursement for something that is not on the list adopted by their local agency, then the official has the option of seeking prior approval for such reimbursement from the governing body.24 Local agencies must use expense report forms and all expenses must be documented with receipts.25 These documents are public records subject to disclosure.26 The expense reimbursement policy must specify a "reasonable time" within which requests for reimbursement must be submitted.27 20 Cal. Gov't Code § 53235.2. 24 Cal. Gov't Code § 53232.2(b). 22 Cal. Gov't Code § 53232.2(a). 23 Cal. Gov't Code § 53232.2(b). 24 Cal. Gov't Code § 53232.2(0. 25 Cal. Gov't Code § 53232.3. 26 Cal. Gov't Code § 53232.3(e). 27 Cal. Gov't Code § 53232.3(c). Institute for Local Government www.ca-ilq.or.q 2. Which agencies must adopt reimbursement policies? Any local agency that reimburses any of its elected and appointed officials on legislative bodies fOr expenses must adopt a policy.28 Local agency includes "a city, county,,,c2ity and county, charter city, charter county, charter city and county, or special district. 29 The definition of "legislative body" is tied to the Brown Act definition of legislative body (see text in note below3°). Again, the tie to "local agency" as defined in the bill, means that AB 1234's requirements on reimbursement policies do not applY to some kinds of agencies on which local officials serve (for example, redevelopment agency governing boards or joint powers agencies), although of course voluntarily adopting expense reimbursement 28 Cal. Gov't Code § 53232.2(b). 29 Cal. Gov't Code § 53232(c). 3o Government Code section 54952 provides in that regard: As used in this chapter, "legislative body" means: (a) The governing body of a local agency or any other local body created by state or federal statute. (b) A commission, committee, board, or other body of a local agency, whether permanent or temporary, decisionmaking or advisory, created by charter, ordinance, resolution, or formal action of a legislative body. However, advisory committees, composed solely of the members of the legislative body that are less than a quorum of the legislative body are not legislative bodies, except that standing committees of a legislative body, irrespective of their composition, which have a continuing subject matter jurisdiction, or a meeting schedule fixed by charter, ordinance, resolution, or formal action of a legislative body are legislative bodies for purposes of this chapter. (c) (1) A board, commission, committee, or other multimember body that govems a private corporation, limited liability company, or other entity that either: (A) Is created by the elected legislative body in order to exercise authority that may lawfully be delegated by the elected governing body to a private corporation, limited liability company, or other entity. (B) Receives funds from a local agency and the membership of whose goveming body includes a member of the legislative body of the local agency appointed to that governing body as a full voting member by the legislative body of the local agency. (2) Notwithstanding subparagraph (B) of paragraph (1), no board, commission, committee, or other multimember body that governs a private corporation, limited liability company, or other entity that receives funds from a local agency and, as of February 9, 1996, has a member of the legislative body of the local agency as a full voting member of the governing body of that private corporation, limited liability company, or other entity shall be relieved from the public meeting requirements of this chapter by virtue of a change in status of the full voting member to a nonvoting member. (d) The lessee of any hospital the whole or part of which is first leased pursuant to subdivision (p) of Section 32121 of the Health and Safety Code after January 1, 1994, where the lessee exercises any material authority of a legislative body of a local agency delegated to it by that legislative body whether the lessee is organized and operated by the local agency or by a delegated authority. Institute for Local Government www.ca-ilq.or,q policies is a prudent course of action for non-covered entities. It also does not apply to school districts. 3. Does AB 1234 affect reimbursement practices in other ways? AB 1234 emphasizes the level of the expense incurred (as opposed to what the agency will reimburse). Consistent with this, AB 1234 says that local agencies may specify what constitutes reasonable rates for travel, meals, lodging and other expenses. If a local policy does not specify reimbursement rates, then the reimbursable rates default to those specified in the Internal Revenue Service guidelines.31 If a legislative body member wants to seek reimbursement for levels of expenses not otherwise authorized under the agency's reimbursement policy, then the official has the option of seeking prior approval for such reimbursement from the governing body. 32 Note there may be clean-up legislation that clarifies that local officials have the option of personally paying for the difference between what an agency will reimburse and actual expense incurred. 4. If there are no mandatory reimbursement rates, is there no limit on what local officials may be reimbursed for? The law specifies certain thresholds for what constitutes reasonable levels of expenses. For example, for lodging in connection with conferences, the rate may not exceed the maximum group rates published for the conference.33 If those rates are not available at the time the lodging is booked, the lodging rates must be comparable to those allowed by the Internal Revenue Service or government rates? Local agency officials must use group or ~l~overnment rates for non-conference-related lodging and transportation services. But otherwise, AB 1234 retains agencies' discretion, subject to community standards relating to the judicious use of scarce taxpayer dollars. Again, there may be clean-up legislation that clarifies that local officials have the option of personally paying for the difference between what an agency will reimburse and actual expense incurred. 31 Cal. Gov't Code § 53232.2(c). See also Publication 1542 at www.irs..qov or www.policyworks..qov/perdiem. 3z Cal. Gov't Code § 53232.2(f). 33 Cal. Gov't Code § 53232.2(d). 3~ld' 35 Cal. Gov't Code § 53232.2(e). Institute for Local Government www.ca-il,q.or,q 5. What do we do about reimbursing expenSes before we adopt the policies contemplated by AB 12347 Agencies should not reimburse expenses until they have a policy in place. An option is to ask their officials to retain any receipts for reimbursable expenses until the policy can be adopted and then submit their reimbursement requests consistent with those policies and AB 1234's requirements. 6. May local agencies grant car allowances under AB 12347 This is a very good question on which agency attorneys disagree. Some agency attorneys believe that AB 1234's requirement that expenses be reimbursed after the fact based on receipts means that vehicle and other expense allowances are not permitted.36 Some local agencies had previously reimbursed auto expenses through an allowance, based on statute and case law37 that seemed to permit allowances when based on empirically demonstrable information that the allowance matched actual and necessary expenses incurred.38 ^ factor to keep in mind with expense allowances is that they may be taxable (and subject to withholding) if the official cannot document that his or her actual expenses met or exceeded the allowance? This, and the requirement that any expense allowance be based on empirical information about actual expenses incurred, predate AB 1234's requirements. 7. If an agency has a current reimbursement policy, does AB 1234 require that it develop another policy if the current policy omits one of the identified items, like travel, meals, or lodging? Agencies should consult with agency counsel to make sure that their policies comply with AB 1234's requirements specifically. 36 Cal. Gov't Code § 53232.3. 37 See Cal. Gov't Code § 1223 (authorizing local officials to "contract" for an allowance or mileage rate for automobile owned, rented or used in performance of duties); Citizen Advocates, Inc. v. Board of Supervisors, 146 Cal. App. 3d 171 (1983). 38 See A/bright v. City of South San Francisco, 44 Cai. App. 3d 866 (1975). 39 Treas. Regs. § 1.62-2T(e), § 1.3401 (a)-lT. Institute for Local Government www.ca-ilq.or.q 8. How should local agencies interpret the requirement for members of a legislative body to provide brief reports on the meetings they attended at the expense of the local agency at the next regular meeting of the legislative body? AB 1234 requires members of a legislative body to report on "meetings" attended at public expense at the next meeting of the legislative body.44°1 "Meetings" for purpose of this section are tied to the Brown Act meaning of the term: any congregation of a majority of the members of a legislative body at the same time and place to hear, discuss, or deliberate upon any item that is within the subject matter jurisdiction of the legislative body or the local agency to which it pertains? Presumably this can be either a written or oral report. Note too that some public agencies have also voluntarily adopted requirements that any time an official attends a conference or similar gathering at public expense that a report be provided back to the body. Again, the report typically can be written or oral. 9. Can AB 1234's requirements for expense reimbursement be constitutionally applied to charter cities? A number of charter city attorneys argue that expense reimbursement falls under the category of "compensation" over which charter cities have plenary authority to the exclusion of state regulation.43 Indeed, the portion of AB 1234 relating to expense reimbursement i.s4~3art of a new article being added to the Government Code entitled "Compensation. Of course individual charter requirements and good fiscal management practices may make voluntary adoption of the kind of expense reimbursement policy contemplated by AB 1234 advisable. The Institute's sample reimbursement policy includes a suggested finding for charter cities stating that the reimbursement policy would satisfy AB 1234's requirements in the event such requirements could be constitutionally applied to charter cities. 4o Cal. Gov't Code § 53232.3(d). 41 Cal. Gov't Code § 53232.3(d). 42 See Cal. Gov't Code § 54952.2. 43 Cal. Const. art. XI, § 5. County of Sonoma v. Commission on State Mandates, 84 Cal. App. 4th 1264 ooo). ArticJe 2.3 of chapter 2 of Part 1 of division 2 of title 5 of the Government Code. Institute for Local Government www.ca-ilq.or.q 10. What are the penalties for misuse of public resources or falsifying expense reports? Penalties for misuse of public resources or falsifying expense reports in violation of expense reporting policies may include at a minimum:45 · Loss of reimbursement privileges · Restitution to the local agency · Civil penalties of up to $1,000 per day and three times the value of the resource used46 · Criminal prosecution and a lifetime bar from public office47 Compensation 1. What impact does AB 1234 have on compensation for local officials? AB 1234 limits direct compensation for some officials, primarily members of a legislative body of an independent special district, excluding irrigation districts that provide electricity, utility districts with boards having seven members, and harbor districts.48 These limits do not apply to salaried officials of any local agency, including city council members and members of a board of supervisors, or charter cities. 49 Agencies that are subject to these provisions may pay a stipend to members of a legislative body for: · A meeting of any "legislative body" as defined by the Brown Act · A meeting of an advisory body · Conference attendance or educational activities, including ethics training5° Agencies may compensate officials for attendance at other events as specified in a written policy adopted in a public meeting? 2. What about AB 11's requirements with respect to city council member compensation? AB 11 reiterates what some city attorneys considered to be existing law for general law cities: Unless specifically authorized by another statute, a city council may not enact an 45 See Cal. Gov't Code § 53232.4. 46 See Cal. Gov't Code § 8314. 47 See Cal. Penal Code § 424. 4a Cal. Gov't Code § 53232.1(c). 49 Cal. Gov't Code § 53232.1(c). so Cal. Gov't Code § 53232.1(a). s~ Cal. Gov't Code § 53232.1(b). 10 Institute for Local Government www.ca-ilq.or.q ordinance providing for compensation to elected city council members in excess of the schedules authorized under the Government Code. 52 The goal of AB 11 was to make it clear that, in general law cities, city council members could not augment their compensation by creating additional boards and commissions on which council members would serve and then receive a separate stipend for that service. AB 11 also changed the law with respect to serving on community development commission formed to oversee both redevelopment and housing authority functions. AB 11 says that, under such circumstances, commissioner compensation may not exceed $150 per commissioner per meeting, with a maximum of two meetings ($300) per month.$3 If the body just serves as a redevelopment agency, the compensation is $75 per commissioner, per meeting, with a maximum of two meetings. ~4 3. When does AB 11 go. into effect? January 1, 2006, although a number of city attorneys have questioned whether the Legislature can reduce the compensation of sitting city council members (see question below),ss 4. Does AB 11 apply to city council members who were elected to office before January 1, 2006? This question is being addressed by the California Attorney General's office,56 inasmuch as there is a Government Code provision that says that city council member salaries cannot be reduced during a city council member's term.57 This of course gives rise to the question of what one should do while waiting for the Attorney General's answer. One option is to keep funds put in question by AB 11 into a sort of escrow account until the Attorney General's office issues its opinion (which is likely to be in the spring). 5. Does AB 11 apply to charter cities? The general compensation restrictions of AB 11 (including the ability to create commissions and committees and augment compensation levels) apply only to general s2 See Cal. Gov't Code § 36516(d). 53 Cal. Health & Safety Code § 34130.5(c). ~ Cal. Health & Safety Code § 34130.5(b). ss 80 Cal. Op. Att'y Gen. 119 (1997) (interpreting Government Code section 36516.5 as precluding a change of council member salaries during the council member's term). 5~ See Attorney General Request for Input on pinion No. 05-1204 circulated December 8, 2005 and asking for input by February 6, 2006. s7 80 Cal. Op. Atry Gen. 119 (1997) (interpreting Government Code section 36516.5 as precluding a change of council member salaries during the council member's term). It Institute for Local Government www.ca-ilq.or,q law cities--unless a charter somehow incorporates general law with respect to council member salaries?8 To the extent that a charter city has a community redevelopment commission overseeing both housing authority and redevelopment functions, then those aspects of AB 11 are likely to apply, since redevelopment agencies are creatures of state law.59 Revolving Door What does AB 11 do? State officials were precluded from representing individuals before their agencies for one year after leaving office.6° Now that requirement also applies to a number of local officials, including elected officials and city and county managers? The section is operative July 1,2006. G:\LegaP, INSTITUTE~Public Confidence~,B 1234~AB 1234 summary1_11Version.doc 1/11/2006 sa Government Code section 36516, which is the section AB 11 amended, is the code section specifying general law city council member compensation. Charter cities generally have absolute authority over city council member compensation. See Cal. Const. art. XI, § 5. County ofSonoma v. Commission on State Mandates, 84 Cal. App. 4th 1264 (2000). sa See Andrews v. City of San Bernardino, 175 Cal. App. 2d 459, 462 (1959). 6o See Cal. Gov't Code §87406. 6t See Ca/. Gov't Code §87406.3. ]2