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ORD 1104 06/24/2014 OF Clio rJ o Tex AS "City of Choice" ORDINANCE 110 4 AN ORDINANCE AMENDING CHAPTER 46, ARTICLE IV OF THE CITY'S CODE OF ORDINANCES AND REPEALING ORDINANCE NUMBER 797 OF THE CITY OF CIBOLO, TO DECLARE THAT THE POSSESSION, USE, MANUFACTURE, SALE, OFFER FOR SALE AND DISCHARGE OF FIREWORKS IN THE CITY OF CIBOLO TO BE A PUBLIC NUISANCE; PROHIBITING THE POSSESSION, USE, MANUFACTURE, SALE, OFFER FOR SALE AND DISCHARGE OF FIREWORKS WITHIN THE CORPORATE LIMITS OF THE CITY OF CIBOLO AND THE MANUFACTURE, SALE, OFFER FOR SALE WITHIN FIVE THOUSAND (5,000) FEET OF THE CORPORATE LIMITS OF THE CITY OF CIBOLO; PROVIDING A PENALTY FOR VIOLATIONS; A SEVERABILITY CLAUSE; AND AN EFFECTIVE DATE WHEREAS the City Council seeks to promote the health, safety and general welfare of the community by preventing death, injuries and property damage within the City limits and within five thousand (5,000) feet of its jurisdictional limits excluding any portion of such area in another municipal corporation or jurisdiction; and WHEREAS the City Council finds that the possession, use, manufacture, sale, offer for sale and discharge of fireworks will result in bodily injury, death, and property damage; and WHEREAS the City Council finds that the manufacture, sale, offer for sale of fireworks, especially in the confines of a municipality and within five thousand (5,000) feet of its jurisdictional limits, is dangerous not only to property but also to persons, and results annually in the loss of property and the loss of life; and WHEREAS the City Council finds that the indiscriminate use of fireworks constitutes a menace to life, limb, and health to the users and their associates, increases the hazard and loss by fires, and constitutes a common public nuisance, which should be prevented and abated by law; and Page 1 of 9 WHEREAS the City Council finds that the noise generated by the use or combustion of fireworks and explosives constitutes a public nuisance; and WHEREAS pursuant to Texas Local Government Code section 51 the City Council has the express authority to adopt and publish an ordinance or police regulation that is for the good government, peace or order of the municipality and is necessary or proper for the carrying out a power granted by law to the municipality; and WHEREAS, pursuant to Texas Occupations Code, section 2154.004 (b), the City is authorized to prohibit or regulate fireworks within the city limits; and WHEREAS pursuant to Texas Local Government Code section 217 the City Council has the express authority to prevent and abate any nuisance within the limits of the municipality and to have any nuisance removed at the expense of the owner of the nuisance or the person who owns the property on which the nuisance exists; and WHEREAS pursuant to Texas Local Government Code Chapter 54 the City Council has the express authority to enforce local ordinances and to prescribe penalties for the violation of those ordinances in accordance with the guidelines of that section. NOW, THEREFORE: BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CIBOLO,TEXAS: I. Code Amended Chapter 46,Article IV of the City of Cibolo's Code of Ordinances is hereby amended to read as follows: Section 46-85 Definitions. The following words, terms, and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: "Fireworks" as used in this ordinance shall mean and include any firecrackers, cannon crackers, skyrockets, torpedoes, Roman candles, sparklers, squibs, fire balloons, sky lantern, sky candle, star shells, gerbs, and/or any composition or device designed to produce a visible or audible effect by combustion, explosion, deflagration, detonation, spark, flare/flame, flame effect, and any other substance in whatever combination by any designated name intended for use in obtaining visible or audible pyrotechnic display and shall include all articles or substances within the commonly accepted meaning of fireworks whether herein specially designated and defined or not. Page 2 of 9 "Fire Prevention Officer" means the city fire marshal, fire chief, any other local enforcement officer primarily responsible for fire prevention, or a local certified fire inspector. "Multiple Display" shall mean firing a series of devices with a pause of more than fifteen (15) minutes between firing, igniting, or setting in motion. "Person" shall mean and include any person, association of persons, partnerships, corporations, agent(s), or officer(s) of corporation(s), and shall also include all warehousemen, common and private carriers,bailees,trustees,receivers, executors, and administrators. "Single Display" shall mean firing a series of devices without pausing more than fifteen (15) minutes between firing,igniting,or setting in motion. Section 46-86 Fireworks declared a public nuisance and prohibited. A. The presence of any fireworks within the city limits of the City of Cibolo in violation of this ordinance is hereby declared to be a public nuisance, except where exempt by State Law. The manufacture, sale, offer for sale, or give away of any fireworks within the jurisdiction of the City of Cibolo or within five thousand(5,000) feet of the city limits of the City of Cibolo that is not within the incorporated limits or jurisdiction of another municipality in violation of this ordinance is hereby declared to be a public nuisance, except where exempt by State Law. The Fire Marshal and/or any Police Officer of the City of Cibolo is authorized and directed to seize any fireworks found within the jurisdiction in violation of this ordinance and the Fire Marshal and/or Police Officer of the City of Cibolo or any member of the Fire Prevention Division of the Fire Department of the City of Cibolo or any other duly constituted peace officer is empowered to stop the transportation of or use of and detain any fireworks found and/or stored illegally until the Fire Marshal/Fire Chief can be notified and/or the fireworks shall be seized and turned over to the Fire Marshal/Fire Chief in order that the said fireworks may be destroyed. B. Not withstanding any penal provision of this ordinance, the City Attorney is authorized to file suit on behalf of the City of Cibolo or the Fire Marshal or both for injunctive relief as may be necessary to prevent unlawful storage, transportation, keeping, selling or use of fireworks within the jurisdiction of the City and to aid the Fire Marshal in the discharge of his or her duties and to particularly prevent any person from interfering with the seizure and destruction of such fireworks but it shall not be necessary to obtain any such injunctive relief as a prerequisite to such seizure and destruction. C. The Fire Marshal or any Police Officer of the City of Cibolo or any other duly constituted peace officer or any member of the Fire Prevention Division of the City of Cibolo is hereby authorized to enter any building where the unlawful presence of fireworks is suspected in order to inspect the same for the presence of such fireworks. D. It shall be unlawful for any person to manufacture, store, transport, receive, keep, sell, give, offer, or have in his or her possession with or without intent to sell, use, give, offer, Page 3 of 9 discharge, cause to be discharged, ignite, detonate, fire, or otherwise set in action any fireworks of any description unless excepted under section 46-87 of this article. Section 46-87 Exceptions. This article shall not apply to the following: A. Signal flares, Fusee, and torpedoes of the type and kind commonly used by any railroad and which signal flares and torpedoes are received by and stored or transported by any such railroad or emergency service worker for use in emergency operations; j B. A marine signal flare or rocket of the type and kind commonly carried by a vessel at sea for its own use and which signal flares or rockets are transported or received or stored for use only as ship's stores or for emergency use; C. Signal flares,rockets, or any pyrotechnic device used by military or police organizations; D. Party poppers,toy pistols,toy canes,toy guns, or other devices that use paper or plastic caps; E. Model rockets and model rocket motors, designed, sold, and used for the purpose of propelling recoverable area models; F. A mixture of sulfur, charcoal, and potassium nitrate used as a propelling or expelling charge, black powder, smokeless powders, and/or similar powders; G. The sale, and use in emergency situations, of pyrotechnic signaling devices or distress signals for marine, aviation, or highway use; H. The sale or use of blank cartridges for use in radio, television, film, theater productions, for signal, ceremonial purposes, in athletic events, construction fastening devices, or for similar purposes; I. Public and/or private displays in accordance with section 46-88 of this article and as permitted through the city. Fireworks, pyrotechnics, and/or flame effects and/or displays before audiences outdoor, indoor, or stage use where allowed shall be regulated and permitted at the discretion of the Fire Marshal or fire prevention officer; or J. The permitted use for agricultural, industrial, or wildlife control purposes. Section 46-88 Exemptions and regulations governing certain private and public displays. Public and private displays and displays before an audience shall be regulated and shall include but not be limited to; outdoor ground and/or aerial fireworks and/or flame effects, indoor fireworks and/or flame effects as provided for in this section only. Such display may be permitted upon compliance with the provisions of city's adopted fire prevention code and of this section as follows: Page 4 of 9 A. Any adult person or any firm, co-partnership, corporation or association planning to make a public or private display of any nature shall first make written application for a permit to the Fire Marshal's Office at least 15 days in advance of the date of the proposed display. B. For each public or private display of fireworks and/or flame effects under this section, the Fire Chief, or Fire Marshal at the direction of the Fire Chief, may require fire crews of the city or volunteer fire department be in attendance during the display(s). The expense of such fire crews and/or apparatus at the display(s) shall be borne by the applicant for the permit as required by this article and shall be paid in advance at the time of the application for the permit. , C. It shall be the duty of the Fire Marshal or fire prevention officer to make an investigation as to whether the display as proposed by the applicant for a permit under this ordinance shall be of such a character that it may not be hazardous to property or dangerous to any person; and he or she shall, in the exercise of reasonable discretion, grant or deny the application, subject to the projected weather conditions, conditions at the proposed site, and conditions prescribed in this article. If the application is approved, a permit shall be issued for the public or private display by the Fire Marshal or fire prevention officer. Such permit shall be for a period of time designated on the permit, but shall not exceed 30 days from issue, and the permit shall not be transferable. If the application is denied by the Fire Marshal or fire prevention officer, he or she shall notify the applicant of the denial in writing, telephone, or fax and with the original written denial to be mailed. D. The applicant for a display permit under this article shall, at the time of making application, furnish proof of insurance as prescribed by the laws of the state; and shall file with the City Fire Marshal's Office a certificate of insurance evidencing the carrying of general liability insurance in an amount not less than five hundred thousand ($500,000) dollars for a public display and not less than one million ($1,000,000) dollars for a display of pyrotechnics and/or flame effects,issued by an insurance carrier authorized to transact business in the state and countersigned by an insurance agent licensed in this state. The policy shall be conditioned to pay the amount of money the insured becomes obligated to pay as damages because of bodily injury and property damage caused by an occurrence involving the insured or the insured's servant, officer, agent, or employee in the conduct of a public fireworks display or a display of pyrotechnics and flame effects. The State Fire Marshal's Office and the City of Cibolo shall be listed as the certificate holders. The name on the policy shall be the same as on the application. An insurer shall not cancel a certificate of insurance issued under this chapter unless the insurer gives the Fire Marshal of the authority having jurisdiction and the State Fire Marshal notice of intent to cancel. E. The persons handling the display of fireworks and/or effects under this article shall be competent, adult persons and experienced pyrotechnic operators approved by the Fire Marshal or Fire Chief. No person not approved by the Fire Marshal or Fire Chief shall handle fireworks and/or effects at the public or private display. The names of the experienced pyrotechnic operators shall be designated on the permit issued. Page 5 of 9 F. The material to be used for a public or private display authorized by this article shall not be stored within the city limits,but shall be brought in on the day of the public or private display and then shall be taken immediately to the place of display for further handling and storage in a magazine, day box, or container approved for the storage of the contents as required by federal, state and local laws and ordinances. Where overnight storage is needed special cases may be reviewed by the Fire Marshal or Fire Chief subject to conditions, protection, and/or security. G. An additional public or private display permit shall be required for each site separated from the permitted site. A site is determined to be separate where the center of the area of launch, ignition, detonation, and/or firing is two hundred fifty (250) feet or more, measured horizontally(by radius)to another area of launch, ignition, detonation, and/or firing. H. All issued permits can be revoked at any time up to the start of and during the display if any hazardous conditions, or issues become evident, weather conditions change, and/or State or County Disaster Declarations or State or County Burn Bans become imposed. I. All displays/shows shall follow the applicable provisions of NFPA 160 Standard for the Use of Flame Effects Before an Audience, NFPA 610 Emergency and Safety Operations at Motorsports Venues,NFPA 1123 Code for Fireworks Display, and NFPA 1126 Standard for the Use of Pyrotechnics Before a Proximate Audience, International Fire Code, and Texas Occupations Code Chapter 2154 except where restricted by this or other codes and with special provisions and/or restrictions issued through the City of Cibolo's Fire Marshal's Office. NFPA Editions of codes shall be the edition on file in the Fire Marshal's Office. This subsection shall include but not be limited to: (1) No one under 21 years of age in the blasting/firing zone. Except where specifically prohibited by code or law, a person 18 or older with written documentation showing experience and knowledge maybe allowed in the blasting/firing zone at the discretion of the Fire Marshal or Fire Chief. (2) No synthetic apparel; cotton or other approved flame resistant material only is to be worn by personnel in the blasting/firing zone. (3) Fire extinguishers shall be present at all times, and fire crews and apparatus on standby(as required). J. A Permit from the State Fire Marshal's Office when required by the State Fire Marshal's Office shall be applied for as part of the submittal at the time of application for a city display. K. Provide all additional documents and information as applicable from the application for fireworks display. L. It shall be the responsibility of the pyrotechnic operator(s) to ensure that all shells, rounds, and/or devices are accounted for and that all fired/launched shells, rounds, and/or devices that partially or in whole misfired, failed to detonate/explode, and/or burn completely are accounted for. Page 6 of 9 M. It shall be the responsibility of the permit holder listed on the application and/or property owner listed on the application for fireworks display to ensure that all trash and debris from the devices and /or packaging be cleaned up/removed from the premises and dispose of properly including any and all trash and debris from the devices and /or packaging that has left the premises, landed, fell upon, or been blown onto another property. Prior permission should be obtained from neighboring property owners. N. No public or private display of fireworks shall be of such a character and so located, discharged, or fired as to be hazardous or dangerous to persons or property, and this determination shall be within the discretion of the Fire Marshal or fire prevention officer. O. No permits shall be issued during times of State or County Disaster Declarations or during times of State or County Burn Bans. P. Prohibited use of fireworks and illegal fireworks by a person and/or pyrotechnic operator(s). (1) A person and/or licensed pyrotechnic operator shall not: a. Detonate, explode or ignite fireworks within six hundred (600) feet of any church, a hospital, a veterinary hospital, an asylum, a licensed child care center, or a public or private primary or secondary school or institution of higher education unless the person receives authorization in writing from that organization; b. Detonate, explode, or ignite fireworks within one hundred (100) feet of a place where flammable/combustible liquids or flammable/combustible compressed gasses are stored and/or dispensed; c. Detonate, explode, or ignite fireworks within one hundred (100) feet of, or throw or launch ignited fireworks at a place where fireworks are stored or sold; d. Detonate, ignite, or discharge fireworks in or from a motor vehicle; e. Place ignited fireworks in, or throw ignited fireworks at, a motor vehicle; f. Conduct a public or private fireworks display that includes Fireworks 1.3G unless the person is a licensed pyrotechnic operator in the State of Texas; or g. Conduct a proximate display of fireworks that includes Fireworks 1.3G or Fireworks I AG as defined in NFPA 1126 Standards for the Use of Pyrotechnics Before a Proximate Audience unless the person is a licensed pyrotechnic special effects operator and has the approval of the local Fire Marshal or fire prevention officer. (2) A person may not manufacture, distribute, sell, give away, or use fireworks in a public or private fireworks display or for agricultural, industrial, or wildlife control purposes without an appropriate license or permit. Fireworks manufactured, distributed, sold, or used without an appropriate license or permit are illegal fireworks. Q. The range/height of the aerial display(s) shall be such that no projectile, device, part, and/or debris shall return to ground elevation still burning, sparking, glowing, or otherwise capable of providing a source of ignition. Page 7 of 9 R. Permitting fees for public and private displays. Multiply fee for each separate display, inspection, fire prevention officer, apparatus, and/or fire crew(s). All fees shall be paid at the Cibolo Police Department. Except for overpayments resulting from mistakes, all fees are nonrefundable and non-transferable. Fees shall be paid by cash, money order, or check. Money orders and checks shall be made payable to the City of Cibolo and shall follow the following fee schedule: Single display $ 75.00 Multiple displays $ 200.00 Fire Prevention Inspection $ 35.00 Standby Fire Prevention Officer $ 150.00 for the first fraction of and up to four hours $ 25.00 each additional hour Standby Fire crew(s) and Apparatus $ 275.00 for the first fraction of and up to four hours $ 75.00 each additional hour Agricultural, Industrial, or Wildlife Control Purposes $ 50.00 annual S. Copies of Fireworks Incident Report Forms shall be on site and readily available for use. Copies of the incident reports submitted to the State Fire Marshal's Office shall be submitted to the City Fire Marshal's Office. T. Notice is to be posted at the site where visible and accessible to those in attendance providing contact information and telephone numbers for the State Fire Marshal's Office and City Fire Marshal's Office for complaint and safety violation reporting. Section 46-89 Penalties. Any person, firm, association of persons, partnerships, corporations, agents, and/or officers of corporations who shall manufacture, assemble, store, transport,receive, keep, sell, offer for sale, offer to give, have in his or her possession any fireworks and/or who shall use, discharge, cause to be discharged, ignite, detonate, fire or otherwise set in action any fireworks in violation of any of the provisions of this Ordinance, except where exempt by State Law shall upon conviction be deemed guilty of a misdemeanor and shall be subject to the penalties provided in section 46-2 of article I of Chapter 46 of this code. The commission or omission of any act prohibited by this article shall be a separate offense as to each individual and each such opened separately wrapped or separately packaged fireworks. II. Cumulative Clause This article shall be cumulative of all provisions of the City of Cibolo's Code of Ordinances Texas except where the provisions of the article are in direct conflict with the provisions of such ordinances or sections of the City's code, in which event the more restrictive provision(s) shall apply. Page 8 of 9 III. Severability Clause It is hereby declared to be the intention of the City Council that the phrases, clauses, sentences, paragraphs, chapter, and sections of this article are severable, and if any phrase, clause sentence, paragraph, chapter, or section of this article shall be declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction such unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, paragraphs, chapters, and sections of this article, since the same would have been enacted by the City Council without the incorporation in this article of any such unconstitutional phrase, clause, sentence,paragraph, chapter, or section. IV. Effective Date This Ordinance shall become adopted and effective ten(10) days after the date of publication in the City of Cibolo's newspaper of record. PASSED AND APPROVED THIS DAY OF �— , 2014 Lisa M. Ja n, Mayor City of Cibolo,Texas Peggy Cimics, City Secretary City of Cibolo, Texas APPROVED AS TO FORM: City Attorney Page 9 of 9