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SB-677 Public safety: fireworks.(2015-2016)

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SB677:v98#DOCUMENT

Amended  IN  Senate  April 06, 2015

CALIFORNIA LEGISLATURE— 2015–2016 REGULAR SESSION

Senate Bill No. 677


Introduced by Senator Mendoza

February 27, 2015


An act to amend Section 44052 of the Health and Safety Code, relating to vehicular air pollution. An act to add Section 13085 to the Government Code, to amend Section 12556, 12558, 12619, 12723, 12724, and 12726 of, to add Sections 12599.5 and 12635.5 to, and to add Chapter 3.5 (commencing with Section 12559) to Part 2 of Division 11 of, the Health and Safety Code, and to amend Section 15301 of the Vehicle Code, relating to public safety.


LEGISLATIVE COUNSEL'S DIGEST


SB 677, as amended, Mendoza. Smog check: penalties. Public safety: fireworks.
Existing law requires various entities, including the State Fire Marshal, to seize certain prohibited fireworks. Existing law requires an authority that seizes fireworks to notify the State Fire Marshal of the seizure and provide specified information. Existing law requires the State Fire Marshal to dispose of the fireworks and requires dangerous fireworks to be disposed of according to specified procedures.
The bill would authorize the State Fire Marshal to permit a state licensed fireworks importer and exporter or wholesaler to purchase any fireworks the State Fire Marshal, the Department of Toxic Substances Control, and a recognized 3rd-party testing entity, as defined, deem to be commercially viable, from the State Fire Marshal. The bill would require any revenue received from the sale to belong to the seizing local authority and would authorize the State Fire Marshal to enter into a revenue sharing agreement with that local authority, as provided. The bill would require the Department of Toxic Substances Control to develop and publish guidelines for the implementation of these provisions, as provided.
Existing law provides that if dangerous fireworks are seized pursuant to a local ordinance that provides for administrative fines or penalties and these fines or penalties are collected, the local government entity collecting the fines or penalties shall forward 65% of the collected moneys to the Controller for deposit in the State Fire Marshal Fireworks Enforcement and Disposal Fund. Existing law requires the State Fire Marshal to acquire and use statewide mobile dangerous fireworks destruction units to collect and destroy dangerous fireworks from local and state agencies.
This bill would instead require the local government to forward 25% of the collected moneys to the Controller. The bill would require seized fireworks to be managed by the State Fire Marshal, the authority seizing any fireworks, or the authority’s contract designee, by either disposing or repurposing the fireworks, as provided. The bill would delete the State Fire Marshal’s authority to acquire and use statewide mobile dangerous fireworks destruction units to collect and destroy dangerous fireworks from local and state agencies.
Existing law authorizes the retail sale of safe and sane fireworks from June 28 to July 6, annually, pursuant to a license issued by the State Fire Marshal, unless otherwise prohibited or regulated by law or ordinance.
This bill would authorize, beginning January 1, 2017, the sale of certified safe and sane fireworks from 9 a.m. on December 26 to 11:59 p.m. on January 1 of the following year pursuant to a license issued by the State Fire Marshal, if authorized by a charter city, city, county, fire protection district, or city and county ordinance or resolution that may also restrict the hours of use of those fireworks. Since a violation of this provision or other existing related provisions in connection with the sale of those fireworks would be a misdemeanor, the bill would impose a state-mandated local program.
The bill would also authorize a charter city, city, county, fire protection district, or city and county that adopts an ordinance or resolution authorizing the sale of safe and sane fireworks to require each applicant receiving a permit to pay a fee to the charter city, city, county, fire protection district, or city and county of a pro rata portion of the actual and reasonable costs incurred by the charter city, city, county, fire protection district, or city and county for, among other things, processing and issuing fireworks permits, inspection of fireworks stands, public awareness and education campaigns regarding the safe and responsible use of safe and sane fireworks, and related fire operation and suppression efforts, as specified. The bill would specify that the pro rata portion of those costs shall be based on a percentage of the permittee’s sales and use tax return for the applicable permit period, not to exceed 7% of the gross sales of the fireworks sold in the charter city, city, county, fire protection district, or city and county, except that a cost recovery ordinance or resolution in effect on or before January 1, 2015, would be authorized to supersede that provision.
The bill would require, on or before January 1, 2017, the State Fire Marshal to collect and analyze data relating to fires, damages, seizures, arrests, administrative citations, and fireworks disposal issues caused by the sale and use of both dangerous illegal fireworks and safe and sane fireworks, as provided.
The bill would require on or before January 1, 2018, the State Fire Marshal to identify and evaluate methods to track all containers containing dangerous fireworks coming into California ports that are to be shipped in or out of the state, as provided. The bill would require the State Fire Marshal to, on or before January 1, 2019, adopt regulations relating to dangerous fireworks tracking and providing for an annual charge to be paid by all holders of an importer’s and exporter’s license who import dangerous fireworks into the state. The bill would require the amount of the charge to be determined based on the volume of product and number of containers imported into the state by the licensees, and payment of this charge would be a condition of an importer’s and exporter’s license.
Existing law requires the Department of Motor Vehicles to suspend the commercial license of a person transporting dangerous fireworks, as specified.
This bill would clarify that those provisions do not apply to a person with a valid license or permit under the State Fireworks Law, as specified.
Existing law provides that the Department of Finance has general powers of supervision over all matters concerning the financial and business policies of the state.
This bill would require, for purposes of monitoring the budgets of the Department of Forestry and Fire Protection and the Department of Toxic Substances Control, as those budgets relate to programs regarding fireworks, the director to create a plan for modifying the budget process to increase efficiency and focus on accomplishing program goals relating to fireworks. The bill would require the plan to include certain content, including ways to ensure transparency about program goals, outcomes, and funding.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law establishes a motor vehicle inspection and maintenance program, referred to as a smog check program, developed, implemented, and administered by the Department of Consumer Affairs. The duty of enforcing and administering the program is vested in the Chief of the Bureau of Automotive Repair within the department. Existing law authorizes the department to issue a citation to a licensee, contractor, or fleet owner for a violation of the requirements of the smog check program, and the citation may specify certain civil or administrative penalties.

This bill would make a technical, nonsubstantive change to those provisions.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NOYES   Local Program: NOYES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 13085 is added to the Government Code, to read:

13085.
 (a) For purposes of monitoring the budgets of the Department of Forestry and Fire Protection and the Department of Toxic Substances Control, as those budgets relate to programs regarding fireworks, the director shall create a plan for modifying the budget process to increase efficiency and focus on accomplishing program goals relating to fireworks. The plan shall be developed in collaboration with the Director of Forestry and Fire Prevention and the Director of Toxic Substances Control.
(b) The plan shall include all of the following:
(1) A strategy to incorporate program evaluation methods into the budget process for selected activities and programs. These methods shall include zero-based budgeting, performance measures, strategic planning, audits, cost-benefit analyses, and program reviews.
(2) Ways to ensure transparency about program goals, outcomes, and funding.
(3) A process for collaborating with the Legislature, particularly in establishing program goals and measuring program outcomes.
(4) A structure to work with local governments to develop methods to measure and evaluate performance of state-funded, locally administered programs.
(5) An implementation timeline beginning with the release of the 2016–17 Governor’s Budget.

SEC. 2.

 Section 12556 of the Health and Safety Code is amended to read:

12556.
 (a) In addition to the obligations described in Section 13110.5, on or before July 1, 2008, the State Fire Marshal shall identify and evaluate methods to capture more detailed data relating to fires, damages, and injuries caused by both dangerous fireworks and safe and sane fireworks. These evaluation methods shall include a cost analysis related to capturing and reporting the data and shall meet or exceed the specificity, detail, and reliability of the data captured under the former California Fire Incident Reporting System (CFIRS). The State Fire Marshal shall furnish a copy of these evaluation methods to any interested person upon request.
(b) On or before January 1, 2017, the State Fire Marshal shall collect and analyze data relating to fires, damages, seizures, arrests, administrative citations, and fireworks disposal issues caused by the sale and use of both dangerous illegal fireworks and safe and sane fireworks. The State Fire Marshal shall collect data pursuant to a methodology developed in consultation with the State Fire Marshal’s General Fireworks Advisory Committee.

SEC. 3.

 Section 12558 of the Health and Safety Code is amended to read:

12558.
 The (a) In addition to the obligations described in this chapter, on or before January, 1 2018, the State Fire Marshal shall, in consultation with relevant federal, state, and local public agencies, the fireworks industry, and other relevant stakeholders, including port authorities for harbors and points of trans-Pacific importation of any dangerous fireworks, identify and evaluate methods to track all containers containing dangerous fireworks coming into California ports that will be transported in the state or trans-shipped out of those ports via container on a motor vehicle for shipment to a destination outside of California so as to ensure that the dangerous fireworks reach their final destination and are not drop shipped or otherwise offloaded at a location within the State of California. These tracking methods shall include a cost analysis related to capturing and reporting the tracking data concerning these containers.
(b) On or before January 1, 2019, the State Fire Marshal shall adopt regulations relating to the tracking of the dangerous fireworks containers described in subdivision (a), which may include provisions relating to tracking devices installed on each container, voluntarily funded by the industry, as may be necessary for the protection of life and property within the state. The regulations shall provide for an annual charge imposed on all holders of an importer’s and exporter’s license, pursuant to Section 12573, who import dangerous fireworks into the state. The annual charge shall be determined based on the volume of product and number of containers imported into the state by the licensees, and payment of this charge shall be a condition of licensure pursuant to Section 12573.
(c) The licensee or permittee shall permit the chief of the issuing authority, or his or her authorized representatives, as qualified in Section 12721, to enter and inspect any building or other premises premises, including any container described in subdivision (a), that is subject to the control of or used by the licensee or permittee for any purpose related to fireworks at any time for the purpose of enforcing the provisions of this part.

SEC. 4.

 Chapter 3.5 (commencing with Section 12559) is added to Part 2 of Division 11 of the Health and Safety Code, to read:
CHAPTER  3.5. Fireworks Sell-Back Program

12559.
 (a) Notwithstanding Section 12723, and upon compliance with Section 12726, a local authority or the State Fire Marshal may repurpose or dispose of seized safe and sane fireworks and transfer any safe and sane and federally approved fireworks to an entity possessing a valid importer’s and exporter’s license, pursuant to Section 12573, or a wholesaler’s license, pursuant to Section 12572. Any fireworks transferred pursuant to this subdivision shall remain under the ownership of the seizing local authority.
(b) Safe and sane or federally approved fireworks transferred pursuant to this section shall be deemed “hazardous material” until the State Fire Marshal, the Department of Toxic Substances Control, and a recognized third-party testing entity make the determination pursuant to subdivision (c).
(c) (1) The State Fire Marshal is authorized to permit a recognized third-party testing entity to make a determination with the State Fire Marshal and the Department of Toxic Substances Control as to whether any seized fireworks are either commercially viable or hazardous waste.
(2) Any firework deemed commercially viable may be repackaged by the State Fire Marshal, the authority seizing any fireworks, or that authority’s designee, including, but not limited to, a state licensed fireworks importer and exporter, a wholesaler purchasing the product pursuant to subdivision (d), the recognized third-party testing authority, or a licensed hazardous materials or hazardous waste hauler.
(3) Any product deemed not commercially viable by the State Fire Marshal, the Department of Toxic Substances Control, and a third-party testing authority shall be disposed of by the State Fire Marshal or the State Fire Marshal’s designee and transported and disposed of within 72 hours of the determination in accordance with all federal and state hazardous waste laws and regulations.
(d) (1) The State Fire Marshal shall authorize a state licensed fireworks importer and exporter or wholesaler to purchase any fireworks deemed to be commercially viable pursuant to subdivision (c) from the State Fire Marshal or the local authority seizing the fireworks. Revenue received from the sale shall belong to the seizing local authority.
(2) The State Fire Marshal may enter into an agreement with a local authority for purposes of sharing revenue from the sale of fireworks pursuant to paragraph (1). The agreement shall allocate no less than 65 percent of the revenues to that local authority with the balance going to the state.
(e) For purposes of this section, “recognized third-party testing entity” means an independent third-party testing entity recognized by the federal Consumer Product Safety Commission as an acceptable testing entity for consumer fireworks.
(f) Upon the purchase of fireworks, pursuant to this chapter, a state-licensed fireworks importer and exporter or wholesaler shall accept full liability for any damage done by the fireworks and the State of California and the seizing local authority shall be indemnified.

12559.1.
 (a) The State Fire Marshal and the Department of Toxic Substances Control shall train local fire and law enforcement personnel on the requirements of this chapter.
(b) The State Fire Marshal shall, in consultation with relevant state and local public agencies, the fireworks industry, and other relevant stakeholders, develop, publish, and provide necessary guidance and training to local agencies that seize, collect, transport, store, and treat seized fireworks. This training and education may include, but is not limited to, the following specific areas:
(1) Standards for the transportation, storage, and handling of fireworks and pyrotechnic articles in accordance with Chapter 6 (commencing with Section 975) of Division 1 of Title 19 of the California Code of Regulations and the National Fire Protection Association 1124: Code for the Manufacture, Transportation, Storage, and Retail Sales of Fireworks and Pyrotechnic Articles of 2013.
(2) Recognition of explosive materials and isolation procedures in accordance with Chapter 10 (commencing with Section 1550) of Division 1 of Title 19 of the California Code of Regulations and the National Fire Protection Association 495: Explosive Materials Code of 2013.
(3) Recognition of commercial, consumer, and illegal fireworks in accordance with Chapter 6 (commencing with Section 975) of Division 1 of Title 19 of the California Code of Regulations and the National Fire Protection Association 1124: Code for the Manufacture, Transportation, Storage, and Retail Sales of Fireworks and Pyrotechnic Articles of 2013.

12559.2.
 The Department of Toxic Substances Control shall develop and publish guidelines for the implementation of this chapter that include, but are not limited to, all of the following:
(a) Standards for the proper handling, transport, and storage of fireworks that are hazardous materials for the purposes of this chapter.
(b) Standards for the proper handling, transport, and disposal of fireworks that are hazardous waste.
(c) A definition of “commercially viable” for the purposes of this chapter that ensures that fireworks that should be disposed of as waste are not resold.

SEC. 5.

 Section 12599.5 is added to the Health and Safety Code, to read:

12599.5.
 (a) Notwithstanding Sections 12599 and 12672, the State Fire Marshal shall issue separate one-time retail licenses pursuant to this section that shall authorize the retail sale of safe and sane fireworks within this state only from 9 a.m. on December 26 to 11:59 p.m. on January 1 of the following year, inclusive. A license issued pursuant to this section shall be valid for only that seven-day period and shall then expire. All fireworks sold pursuant to a license issued pursuant to this section shall have been certified as safe and sane by the State Fire Marshal on or before June 15 of the year in which the validity of the license commences. No other license issued pursuant to this chapter shall authorize the sale of fireworks during that period.
(b) A retail license shall not be issued for the license period authorized by this section unless the charter city, city, county, fire protection district, or city and county having jurisdiction over the fixed location where the fireworks would be sold adopts an ordinance or resolution allowing that sale, and the application for that license is received by the State Fire Marshal on or before December 15 of the year in which the validity of the license is to commence. The ordinance or resolution authorizing the sale of those fireworks may limit the period of use of those fireworks to specified days and hours within the period during which the sale is authorized by this section.
(c) This section shall become operative on January 1, 2017.

SEC. 6.

 Section 12619 of the Health and Safety Code is amended to read:

12619.
 All import and export licensees shall file a notice with the State Fire Marshal prior to the arrival of any class of fireworks subject to the license he holds. The notice shall state all of the following:
(a)  Estimated date of arrival.
(b)  Type, kind, and quantity of fireworks.
(c)  Name of carrier.
(d)  Point of origin and bill of lading number.
(e)  Name and address of consignee.
(f)  Load number or other identification carton marks.
(g) On and after January 1, 2019, verification of compliance with Section 12558, and any regulations adopted pursuant to Section 12558.

SEC. 7.

 Section 12635.5 is added to the Health and Safety Code, to read:

12635.5.
 (a) A charter city, city, county, fire protection district, or city and county that adopts an ordinance or resolution pursuant to Section 12599 or 12599.5 may, through adoption of an ordinance or resolution by the governing body, require each applicant receiving a permit to pay a fee to the charter city, city, county, fire protection district, or city and county of a pro rata portion of the actual and reasonable costs the charter city, city, county, fire protection district, or city and county incurs that is related to any of the following:
(1) Processing and issuing permits.
(2) Inspection of fireworks stands.
(3) Public education and awareness campaigns regarding the safe and responsible use of safe and sane fireworks, and the dangers and risks posed by the use of illegal fireworks.
(4) Enforcing the provisions of the code of the charter city, city, county, fire protection district, or city and county with respect to the sale and use of safe and sane fireworks, including extra personnel time and cleanup of the fireworks trash and debris. “Extra personnel time” means employee or contracted employee time that the charter city, city, county, fire protection district, or city and county would not otherwise incur but for the sale and use of safe and sane fireworks.
(5) Fire operation and suppression efforts that are directly related to safe and sane fireworks.
(b) The pro rata share of the costs shall be specified in the ordinance or resolution and calculated using gross sales as shown on each permittee’s sales and use tax return for the applicable period. The pro rata share of costs shall not exceed 7 percent of the gross sales of the fireworks sold in the charter city, city, county, fire protection district, or city and county during the applicable period. A cost recovery ordinance or resolution in effect on or before January 1, 2015, may supersede this subdivision.

SEC. 8.

 Section 12723 of the Health and Safety Code is amended to read:

12723.
 The authority seizing any fireworks under the provisions of this chapter shall notify the State Fire Marshal not more than three days following the date of seizure and shall state the reason for the seizure and the quantity, type, and location of the fireworks. Any fireworks, with the exception of dangerous fireworks, seized pursuant to Section 12721 shall be disposed of managed by the State Fire Marshal Marshal, the authority seizing the fireworks, or the authority’s contract designee in the manner prescribed by the State Fire Marshal at any time subsequent to 60 days from the seizure or 10 days from the final termination of proceedings under the provisions of Section 12593 or Section 12724, whichever is later. Dangerous fireworks shall be disposed of managed according to procedures in Sections 12724 and 12726. Any fireworks seized by any authority as defined in this chapter, other than the State Fire Marshal or his or her salaried assistants, shall be held in trust for the State Fire Marshal by that authority.

SEC. 9.

 Section 12724 of the Health and Safety Code is amended to read:

12724.
 (a) Any A person whose fireworks are seized under the provisions of this chapter may, within 10 days after seizure, petition the State Fire Marshal Marshal, or the authority seizing the fireworks, to return the fireworks seized upon the ground that the fireworks were illegally or erroneously seized. Any A petition filed pursuant to this section shall be considered by the State Fire Marshal Marshal, or the authority seizing the fireworks, within 15 days after filing or after a hearing granted to the petitioner, if requested. The State Fire Marshal Marshal, or the authority seizing the fireworks, shall advise the petitioner of his or her or its decision in writing. The determination of the State Fire Marshal Marshal, or the authority seizing the fireworks, is final unless within 60 days after seizure an action is commenced in a court of competent jurisdiction in the State of California for the recovery of the fireworks seized pursuant to this part, except as provided in subdivision (b).
(b)  The determination of the State Fire Marshal Marshal, or the authority seizing the fireworks, is final in the case of the seizure of dangerous fireworks, unless within 20 days after the notice of the determination is mailed to the petitioner an action is commenced in a court of competent jurisdiction in the State of California for the recovery of the fireworks seized pursuant to this part.

SEC. 10.

 Section 12726 of the Health and Safety Code is amended to read:

12726.
 (a) The dangerous fireworks seized pursuant to this part shall be disposed managed of by the State Fire Marshal Marshal, the authority seizing the fireworks, or the authority’s contract designee, in the manner prescribed by the State Fire Marshal at any time after the final determination of proceedings under Section 12724, or upon final termination of proceedings under Section 12593, whichever is later. If no proceedings are commenced pursuant to Section 12724, the State Fire Marshal Marshal, the authority seizing the fireworks, or the authority’s contract designee, may repurpose, dispose of of, or both, the fireworks after all of the following requirements are satisfied:
(1) A random sampling of the dangerous fireworks has been taken, as defined by regulations adopted by the State Fire Marshal pursuant to Section 12552.
(2) The analysis of the random sampling has been completed.
(3) Photographs have been taken of the dangerous fireworks to be destroyed. repurposed, disposed of, or both.
(4) The State Fire Marshal has given written approval for the destruction repurposing, disposal, or both, of the dangerous fireworks. This approval shall specify the total weight of the dangerous fireworks seized, the total weight of the dangerous fireworks to be destroyed, and the total weight of the dangerous fireworks not to be destroyed.

(b)To carry out the purposes of this section, the State Fire Marshal shall acquire and use statewide mobile dangerous fireworks destruction units to collect and destroy seized dangerous fireworks from local and state agencies.

(c)

(b) If dangerous fireworks are seized pursuant to a local ordinance that provides for administrative fines or penalties and these fines or penalties are collected, the local government entity collecting the fines or penalties shall forward 65 25 percent of the collected moneys to the Controller for deposit in the State Fire Marshal Fireworks Enforcement and Disposal Fund, as described in Section 12728.

SEC. 11.

 Section 15301 of the Vehicle Code is amended to read:

15301.
 (a) The Department of Motor Vehicles, in conjunction with the State Fire Marshal, shall develop regulations and procedures to temporarily suspend the commercial motor vehicle license of a person who is operating a commercial motor vehicle while transporting dangerous fireworks having a gross weight of 10,000 pounds or more. A
(b) A driver of a commercial motor vehicle shall not operate a commercial motor vehicle for three years if the driver is convicted of transporting dangerous fireworks having a gross weight of 10,000 pounds or more.
(c) This section shall not apply to a person who holds, and is operating within the scope of, a valid license as described in Section 12516 of the Health and Safety Code or a valid permit as described in Section 12522 of the Health and Safety Code.

SEC. 12.

 The provisions of this act are severable. If any provisions of this act or its application is held invalid pursuant to the federal Resource Conservation and Recovery Act, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

SEC. 13.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.
SECTION 1.Section 44052 of the Health and Safety Code is amended to read:
44052.

(a)If a citation lists more than one violation, the amount of the civil penalty or administrative fine assessed shall be stated separately for each statute and regulation violated.

(b)If a citation lists more than one violation arising from a single inspection or repair of a motor vehicle, the total penalties assessed shall not exceed five thousand dollars ($5,000).