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Ordinance No. 2022-03 | Host Liability for Illegal Fireworks | Adopted 04/04/2022ORDINANCE NO. 2022-03 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF GILROY ADDING GILROY CITY CODE SECTIONS 10A.15 THROUGH 10A.18 TO CHAPTER 10A TO CREATE AND ENFORCE A HOST LIABILITY FOR ILLEGAL FIREWORKS AND ILLEGAL USE OF LEGAL FIREWORKS WHEREAS, the City of Gilroy (City) may adopt regulations to protect the health, safety, and welfare of the public under California Constitution Article XI, Section 7, and California Government Code Section 37100, and thereby is authorized to declare what use or condition constitutes a public nuisance; and WHEREAS, the City has the authority under California Government Code Section 53069.4 to issue administrative citations for violations of the City’s ordinances; and WHEREAS, the City is authorized to regulate or prohibit the sale, use, or discharge of fireworks pursuant to California Health and Safety Code Section 12511; and WHEREAS, pursuant to Chapter 10A, entitled Fireworks, of the Gilroy City Code (City Code), the City currently prohibits the sale, possession and use of “dangerous fireworks” as defined by state law, within the City and permits the discharge of safe and sane fireworks, as defined by state law, within the City only during the hours between 12:00 AM July 1st and 12:00 AM July 5th; and WHEREAS, the City periodically reviews its ordinances to ensure that they are achieving their aims, while continuing to adhere to legal requirements; and WHEREAS, the City Council of the City of Gilroy finds that the aims of City Code Chapter 10A would be better achieved by penalizing not only those individuals who use fireworks in violation of the City Code, but also those individuals who allow such illegal use on property that they either own or control; and WHEREAS, Chapter 10A of the City Code does not currently include a fireworks “host liability” provision; and WHEREAS, the City has experienced an increased use of illegal fireworks around the 4th of July celebrations each year and wishes to implement an ordinance to reduce the likelihood of injuries or property damage as a result of these illegal fireworks; and WHEREAS, the City desires to implement a new “host liability” regulation in order to ensure those who have possession of a residence or other property are held legally responsible for dangerous illegal firework possession and use on that property; and WHEREAS, the City Council finds that holding property owners responsible for illegal firework use is necessary to protect the public health, safety, and welfare; and DocuSign Envelope ID: 1A5C0B8C-1C82-42BE-9FD4-23137CA8ACA5 Ordinance No. 2022-03 Host Liability for Illegal Fireworks City Council Regular Meeting | April 4, 2022 Page 2 of 6 WHEREAS, the City Council desires to amend and update its City Code to reflect the current needs of the City, and to ensure the health, safety, and welfare of the public. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF GILROY DOES HEREBY ORDAIN AS FOLLOWS: SECTION I The forgoing recitals are true and correct and are incorporated herein by this reference. SECTION II Sections 10A.15 through 10A.18 are hereby added to the Gilroy City Code to read as follows: 10A.15 Host liability. A. The term “host” in this Section shall mean any of the following: 1. An owner of any private residential or non-residential real property in the City; or 2. Any person who has the right to use, possess, or occupy public or private property under a lease, permit, license, rental agreement, or contract; or 3. Any person who hosts, organizes, supervises, officiates, conducts, or accepts responsibility for a gathering on public or private property. 4. A person need not be present at the property or any such gathering resulting in the response giving rise to the imposition of civil fines or civil fees for response costs. Prior knowledge of the illegal use of fireworks is not a pre-requisite to a finding that any specific individual is a responsible host as defined by this section. B. The term “strictly liable” in this Section shall mean liability for a wrongful act regardless of a person's intent, knowledge, negligence, or lack thereof in committing the wrongful act. C. Any host shall be strictly liable for any unlawful ignition, explosion, discharge, use, or display of any fireworks in violation of this Chapter on their property or at their gathering, except that no person who has the right to use, possess, or occupy a unit in a multifamily residential property under a lease, rental agreement, or contract shall be liable for a violation of this Chapter occurring in the common area of the property unless the person hosts, organizes, supervises, officiates, conducts, or accepts responsibility for a gathering at which the violation occurs. D. Any person having the care, custody, or control of a minor shall be strictly liable for any unlawful ignition, explosion, discharge, use, or display of fireworks by the minor in violation of this section. DocuSign Envelope ID: 1A5C0B8C-1C82-42BE-9FD4-23137CA8ACA5 Ordinance No. 2022-03 Host Liability for Illegal Fireworks City Council Regular Meeting | April 4, 2022 Page 3 of 6 E. Except as provided below in subsection F, no host shall permit or allow another person on private property, or at a gathering on public property, where the host knows or reasonably should know that the person is engaged in a violation of this Chapter. F. The provisions of this Section shall not apply to: 1. Conduct involving display, use, or discharge of fireworks as permitted under federal or state law; 2. A host who initiates contact with law enforcement or fire officials to assist in removing any person from the property or gathering in order to comply with this Chapter, if the request for assistance is made before any other person contacts law enforcement or fire officials to complain about the violation of this Chapter. G. Penalties for any person cited under this section 10A.15 are exclusively set forth in sections 10A.16 through 10A.18. Section 10A.14 shall not apply to liability arising under the provisions of this this section 10A.15 or for violation of this section 10A.15. 10A.16 Administrative penalties. Any enforcement officer of the city, at his or her discretion, may issue an administrative citation for a violation of section 10A.15. There is no requirement of a first warning in order for the enforcement officer to issue this citation. A. Administrative Penalties. A first violation of this section shall result in a citation with a thousand-dollar ($1,000.00) penalty. A second or subsequent violations shall result in a citation with a two thousand-dollar ($2,000.00) penalty. B. The police shall give notice of a violation of this section by issuing an administrative citation to any and all persons identified by the enforcement officer within thirty (30) days of the violation. The administrative citation shall also give notice of the right to request an administrative hearing to challenge the validity of the administrative citation and the time for requesting that hearing pursuant to section 10A.18 below. C. The administrative penalty prescribed in subsection A is in addition to any administrative cost recovery fee for public safety responses that may be assessed pursuant to section 10A.17 below. D. In the event that the person who is in violation of this section is a juvenile, then the juvenile and the parents or guardians of that juvenile will be jointly and severally liable for the administrative penalty. 10A.17 Administrative cost recovery fees for public safety responses. A. In addition to any administrative penalty imposed for violation of section 10A.15, when any violation occurs on private property and an enforcement officer at the scene determines that there is a threat to the public peace, health, safety or general welfare, the public safety officer shall give to the person(s) responsible warning that a second or follow up violation of this DocuSign Envelope ID: 1A5C0B8C-1C82-42BE-9FD4-23137CA8ACA5 Ordinance No. 2022-03 Host Liability for Illegal Fireworks City Council Regular Meeting | April 4, 2022 Page 4 of 6 section on the same date or on any later date will result in his/her/their liability for the cost of providing public safety services (i.e., fire, ambulance, police, and other emergency providers) hereinafter “administrative cost recovery fees.”) B. The requirement of a first warning does not limit the ability of the enforcement officer to issue an administrative citation, or for the imposition of administrative cost recovery fees on the same day that the warning is given if the warning does not end the violations. The administrative cost recovery fees shall be separate and distinct from an administrative citation and penalty a violation described in section 10A.16 above. 1. The amount of administrative cost recovery fees includes but is not limited to tho se costs set forth below, but shall not exceed five hundred dollars ($500.00) per incident; 2. The portion of the cost of salaries and benefits of law enforcement, fire or other emergency response personnel for the amount of time spent responding to, remaining at, or otherwise dealing with the illegal fireworks use, and the administrative costs attributable to such response(s); 3. The cost of any medical treatment to or for any law enforcement, fire or other emergency response personnel injured responding to, remaining at or leaving the scene of illegal fireworks use; and 4. The cost of the use of any city equipment or property, and the cost of repairing any city equipment or property damaged, in responding to, remaining at or leaving the scene of illegal fireworks use. C. In the event that the person who is in violation of this section is a juvenile, then the juvenile and the parents or guardians of that juvenile will be jointly and severally liable for the imposition of administrative cost recovery fees. D. Administrative cost recovery fees will not be imposed in those situations where the responsible host calls for emergency services for an actual emergency at the premises. 10A.18 Hearings on the imposition of administrative penalty and/or imposition of administrative cost recovery fees; appeals. A. Any person subject to an administrative penalty pursuant to section 10A.16, or subject to an administrative cost recovery fees pursuant to section 10A.17, shall have the right to request an administrative hearing within thirty (30) days of the issuance of an administrative citation for a violation of section 10A.15 and/or the imposition of administrative cost recovery fees as specified in this chapter, pursuant to Gilroy City Code Chapter 6A, Article II, section 6A.11 through 6A.23. B. To request such a hearing, the person requesting the hearing shall notify the city clerk in writing within thirty (30) days of the issuance of the administrative citation and/or imposition of administrative cost recovery fees, pursuant to section 6A.16 of the City Code. C. The hearing procedure shall be as set forth in section 6A.17 of the City Code. DocuSign Envelope ID: 1A5C0B8C-1C82-42BE-9FD4-23137CA8ACA5 Ordinance No. 2022-03 Host Liability for Illegal Fireworks City Council Regular Meeting | April 4, 2022 Page 5 of 6 D. Any person aggrieved by an administrative decision of the hearing officer may obtain review of the administrative decision by filing a petition for review with the Superior Court in Santa Clara County in accordance with the time lines and provisions set forth in California Government Code Section 53069.4. E. Notwithstanding the provisions of Chapter 6A.20, the amount of an administrative penalty and/or administrative cost recovery fees, shall be deemed a debt owed to the city by any person found in violation of section 10A.15 and penalized as identified in section 10A.16 and/or section 10A.17 and, if that person is a juvenile, then also his/her parents or guardians. Any person owing such administrative penalties and/or administrative cost recovery fees shall be liable in an action brought in the name of the city for recovery of such administrative penalty and/or administrative fees. These recovery costs may include reasonable attorney fees incurred in the action. SECTION III Except as set forth in this Ordinance, all other provisions of the Gilroy Charter and City Code shall remain in full force and effect. SECTION IV This Ordinance is not intended to and shall not be construed or given effect in a manner that imposes upon the City or any officer or employee thereof a mandatory duty of care towards persons and property within or without the City, so as to provide a basis of civil liability for damages, except as otherwise imposed by law. SECTION V If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Gilroy hereby declares that it would have passed and adopted this ordinance, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases may be declared invalid or unconstitutional. SECTION VI This Ordinance shall take effect thirty (30) days after its adoption. The City Clerk is hereby directed to publish this Ordinance or a summary thereof pursuant to Government Code Section 36933. DocuSign Envelope ID: 1A5C0B8C-1C82-42BE-9FD4-23137CA8ACA5 Ordinance No. 2022-03 Host Liability for Illegal Fireworks City Council Regular Meeting | April 4, 2022 Page 6 of 6 PASSED AND ADOPTED BY THE COUNCIL OF THE CITY OF GILROY this 4th day of April, 2022 by the following vote: AYES: COUNCIL MEMBERS: ARMENDARIZ, BRACCO, HILTON, LEROE-MUÑOZ, MARQUES, TOVAR, BLANKLEY NOES: COUNCIL MEMBERS: NONE ABSTAIN: COUNCIL MEMBERS: NONE ABSENT: COUNCIL MEMBERS: NONE APPROVED: Marie Blankley, Mayor ATTEST: Thai Nam Pham, City Clerk DocuSign Envelope ID: 1A5C0B8C-1C82-42BE-9FD4-23137CA8ACA5 CERTIFICATE OF THE CLERK I, THAI NAM PHAM, City Clerk of the City of Gilroy, do hereby certify that the attached Ordinance No. 2022-03 is an original ordinance, or true and correct copy of a city Ordinance, duly adopted by the Council of the City of Gilroy at a Regular Meeting of said held on Council held Monday, April 4, 2022, at which meeting a quorum was present. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Official Seal of the City of Gilroy this Monday, April 4, 2022. Thai Nam Pham, CMC, CPMC City Clerk of the City of Gilroy Seal) DocuSign Envelope ID: 1A5C0B8C-1C82-42BE-9FD4-23137CA8ACA5