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Ord. 0513-02 06-11-90ORDINANCE NO. 5132 AN ORDINANCE AMENDING CHAPTER 10, FIRE PREVENTION AND PROTECTION, NAMING ARTICLE III, FIREWORKS, AND CREATING SECTIONS 10-73 THROUGH 10-80 OF THE CODE OF ORDINANCES OF THE CITY, PROVIDING A PENALTY FOR VIOLATION; PROVID- ING A SEVERABILITY CLAUSE, A REPEALING CLAUSE AND A SAVINGS CLAUSE; AND PROVIDING FOR CODIFICATION, PUBLI- CATION AND AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PEARLAND: Section One. That Chapter 10 of the Code of Ordinances of the City of Pearland, Article III, Fireworks, is amended by the inclusion and enactment of Sections 10-73 through 10-80 and as amended shall read as follows: "Sec. 10-73. Definitions. Distributor as used in this article shall mean those who sell fireworks to retailers or to jobbers for resale to others. Fireworks as used in this article shall mean and in- clude any firecrackers, cannon crackers, skyrockets, torpe- does, roman candles, sparkers, squibs, fire balloons, star shells, gerbs or any other substance in whatever combination by any designated name intended for use in obtaining visible or audible pyrotechnic display, and such term shall include all articles or substances within the commonly accepted meaning of fireworks, whether herein specially designated and defined or not. Importer as used in this article shall mean those who import fireworks from a foreign country for sale to distrib- utors, jobbers or retailers within the State of Texas. Jobber as used in this article shall mean those who purchase fireworks for resale to consumers only. Manufacturer as used in this article shall mean per- sons, firms, corporations or associations that are engaged in the making of fireworks. Person as used in this article shall mean and include any natural person, association of persons, partnership, corporation, agent or officer of a corporation, and shall also include all warehousemen, common and private carriers, bailees, trustees, receivers, executors and administrators. Public display as used in this article shall mean the igniting and shooting of fireworks for public amusement. Retailers as used in this article shall mean those who purchase fireworks for resale to consumers only. Sec. 10-74. General Prohibition. Except as otherwise specifically provided in this article, it shall be unlawful for any person to sell, offer 1 to sell, or have in his/her possession with intent to sell, keep, use, discharge, cause to be discharged, ignite, deto- nate, fire or otherwise set in action any fireworks of any description. Sec. 10-75. Aiding minors to purchase, use, etc., fireworks. No relation in the ascending line of a minor, or guard- ian of a minor, shall furnish money or a thing of value to a minor for the purchase of fireworks, or encourage, act in conjunction with or in any manner instigate or aid a minor in the commission of having, keeping, storing, selling, offering for sale, giving away, using, transporting, or manufacturing fireworks within the corporate limits of the city. This shall be an offense regardless of whether the minor has been found guilty of the offense. The commission of the offense by the minor on the property under the con- trol or owned by the relation or guardian shall be prima facie evidence that the relation or guardian was instigating or aiding the minor. Sec. 10-76. Exceptions. The general prohibition as set forth in section 10.74 herein shall not apply to the following: (a) Section 10.74 shall not apply to toy pistols, toy canes, toy guns or similar devices in which paper caps containing twenty-five one -hundredths grains or less of explosive compounds are used, provided they are so constructed that the hand cannot come in contact with the cap when in place for explod- ing, and toy paper pistol caps which contain less than twenty-five one -hundredths grains of explo- sive compounds, the sale and use of which shall be permitted at all times. (b) It shall not be unlawful, upon a permit issued by the Fire Marshal for any person engaged in any organized play, legitimate theatrical performance, circus or other show designed for the amusement and edification of the general public to use, discharge or cause to be discharged and ignited fireworks as a part of an act, performance, play or circus, so long as such person does not also engage in the retailing, wholesaling, selling or distribution of any of such fireworks. The Fire Marshal shall cause to be made an investigation of each application made hereunder to determine whether the use of such fireworks as proposed shall be of such a character that it may be haz- ardous to property or dangerous to any person and he/she shall, in the exercise of reasonable dis- cretion, grant or deny the application for such permit. (c) Section 10-74 shall not apply to signal flares and torpedoes of the type and kind commonly used by any railroads, which signal flares and torpedoes are received by and stored or transported by any railroad for use in railroad operation; nor shall section 10-74 apply to any marine signal flare or rocket which is transported or received or stored for use only as ship's stores; nor shall section 10-74 apply to signal flares or rockets for mili- tary or police use; nor shall section 10.74 apply to signal flares for use by motorists in distress. 2 (3) (d) Persons engaged in the wholesale distribution of Class C fireworks (who were permitted by the State of Texas to sell fireworks as a wholesale distri- bution source only) in the City of Pearland as of January 1, 1975, shall be exempt from prosecution for possession, storage and transportation of Class C fireworks, provided that storage facili- ties meet all state requirements and regulations as set out by the Texas State Board of Insurance, Fireworks Rules, Article 5.43-4 Insurance Code, Section 27.423 entitled "Bulk Storage of Class "C" Fireworks." (e) Persons engaged in the retail distribution of class C fireworks (who were permitted by the State of Texas to sell fireworks as a retail distribu- tion source only), outside the City of Pearland, but within the five thousand foot (5000') limits of this ordinance as of January 1, 1990, shall be exempt from prosecution for the sale of, posses- sion, storage and transportation of Class C fire- works, provided that the said establishment meets all requirements and regulations as set out by the Texas State Board of Insurance Fireworks Rules, and that the location of said establishments have been approved by the City of Pearland Fire Mar- shal. Sec. 10-77. Public displays exempted. The provisions of section 10-74 shall not apply to a public display of fireworks made under the terms and condi- tions of this section and such display shall be permitted upon compliance with the provisions of this section as follows: (1) Any adult person or any firm, copartnership, corporation or association planning to make a public display of fireworks shall first make written application for a permit to the Fire Marshal at least forty-eight (48) hours in advance of the date of the proposed display. (2) It shall be the duty of the Fire Marshal to make an investigation as to whether the display as proposed by the applicant for a permit under this article shall be of such a character that it may be hazardous to property or dangerous to any person, and he/she shall, in the exercise of reasonable discretion grant or deny the applica- tion, subject to the conditions prescribed in this section. In the event the application is ap- proved, a permit shall be issued for the public display by the Fire Marshal. Such permit shall be for a period of time designated on the permit, but shall not exceed fourteen (14) days, and the permit shall not be transferable. In the event that the application is denied by the Fire Mar- shal, he/she shall notify the applicant of the denial in writing. The applicant for a display permit under this section shall, at the time of making application, furnish proof that he/she carries compensation insurance for his/her employees as provided by the laws of the state, and he/she shall file with the 3 Fire Marshal a certificate of insurance evidencing the carrying of public liability insurance in an amount not less than fifty thousand dollars, ($50,000.00), issued by an insurance carrier authorized to transact business in the state, for the benefit of the person named therein as assured as evidence of ability to respond in damages in at least the amount of fifty thousand ($50,000.00), such policy to be approved by the Fire Marshal. In lieu of insurance, the applicant may file with the Fire Marshal a bond in the amount of fifty thousand dollars ($50,000.00), issued by an au- thorized surety company approved by the Fire Marshal, conditioned upon the applicant's payment of all damages to persons or property which shall or may result from or be caused by such public display of fireworks, or any negligence on the part of the applicant or his/her agents, servants, employees or subcontractors in the presentation of the public display. The range of aerial displays shall not be more than two hundred (200) feet and the fireworks shall be discharged vertically from steel tubes. The limit of a display authorized by this section shall be not more than sixty (60) minutes per performance, and there shall not be more than two (2) performances in each twenty-four (24) hours. (6) No public display of fireworks shall be of such a character and so located, discharged or fired as to be hazardous or dangerous to persons or proper- ty, and this determination shall be within the sound discretion of the Fire Marshal. (7) (8) (9) The persons handling the display of fireworks, under this section shall be competent, adult persons and experienced pyrotechnic operators approved by the Fire Marshal, and no person not approved by the Fire Marshal shall handle fire- works at the public display. The names of the experienced pyrotechnic operators shall be desig- nated on the permit issued. For each public display of fireworks under this section, not less than two (2) firemen of the city shall be in attendance during the display. The expense of such firemen at the display shall be borne by the applicant for the permit and shall be paid in advance at the time of the application for the permit. The material to be used for a public display authorized by this section shall not be stored within the city limits (unless approved by the Fire Marshal), but shall be brought in on the day of the public display and then shall be taken immediately to the place of display for further handling and storage. Sec. 10-78. Illegal fireworks as nuisance; seizure and destruction. The presence of any fireworks within the City of Pear - land and within the area immediately adjacent and contiguous to the city limits of such city extending for a distance 4 outside of such city limits for a total of five thousand (5,000) feet, in violation of this article, is hereby de- clared to be a common and public nuisance. The Fire Marshal is directed and required to seize any fireworks found in violation of this article and any authorized deputy of the Fire Marshal, or any police officer of the city or any other duly constituted Texas peace officer is empowered to stop the transportation of and detain any fireworks being trans- ported illegally or to close any building where any fire- works are found stored illegally until the Fire Marshal can be notified in order that such fireworks may be seized in accordance with the terms of this article. Notwithstanding any penal provision of this article, the city attorney is authorized to file suit on behalf of the city, the Fire Marshal, or both, for such injunctive relief as may be necessary to prevent unlawful storage, transportation, keeping or use of fireworks within the city or such five thousand -foot area. It shall not be necessary to obtain injunctive relief as a prerequisite to seizure of fireworks. This section shall not apply within any portion of such five thousand -foot area which is contained within the territory of any other incorporated city, town or village. Sec. 10-79. Penalty. Any person, firm or corporation who shall violate or fail to comply with the requirements of any provisions of the Code herein adopted shall be guilty of a misdemeanor, and shall, upon conviction by a court of competent jurisdic- tion, be punished as provided in Section 1-11 of the City Code of Ordinances. Sec. 10-80. Permitted transportation; identification. It shall not be an offense under this article for a person to transport ICC Class C common fireworks as defined in Texas Revised Civil Statutes Annotated, Article 9205, as amended, by motor vehicles which meet the interstate com- merce commission requirements for transporting ICC Class C Common fireworks if equipped with at least one ten -pound fire extinguisher for extinguishing Type A, B, and C fires, along and upon Farm to Market Road 518 or upon State Highway 35, either within the city limits or within five thousand (5,000) feet of the corporate boundaries of the city. Vehicles used for transportation of fireworks shall be provided with a sign on each side reading "Fireworks." The sign shall have a white background with red letters at least six (6) inches in height and a minimum width of not less than three -fourths (3/4) of an inch." Section Two. If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdic- tion, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions thereof. Section Three. The provisions of the Standard Fire Preven- tion Code, Chapter 20, Fireworks, are hereby repealed. Section Four. All rights and remedies which have accrued in 5 the favor of the City under this Ordinance and amendments thereto shall be and are preserved for the benefit of the City. Section Five. It is the intent of the City Council of the City of Pearland, Texas, that this Ordinance shall be codified in the City's official Code of Ordinances as provided hereinabove. Section Six. The City Secretary shall cause this Ordinance, or its caption and penalty, to be published in the official newspaper of the City of Pearland, upon passage of such Ordi- nance. The Ordinance shall then become effective ten (10) days from and after its publication, or the publication of its caption and penalty, in the official City newspaper. PASSED and APPROVED on first reading this , A. D., 1990. ATTEST: y� 4)/11.424./ City Se retary PASSED and APPROVED on second day of 911 �yiQ. ATTEST: City Sgcretary City Attorney day of i • r Mayor and final reading this A. D.. 1990. Mayor VOTING RECORD (FIRST READING) MAY 29, 1990 Voting "Aye" - Councilmembers Miller, Tetens, Smith, Weber and Wolff. Voting "No" - None. Motion passed 5 to O. VOTING RECORD (SECOND READING) JUNE 11, 1990 Voting "Aye" - Voting "No" - Motion passed Councilmembers Miller, Tetens, Smith, Weber and Wolff. None. 5 to 0. PUBLICATION DATE: JUNE 15, 1990 EFFECTIVE DATE: JUNE 25, 1990 PUBLISHED AS REQUIRED BY SECTION 3.10 OF THE CHARTER OF THE CITY OF PEARLAND, TEXAS. 6