BILL ANALYSIS
SB 839
Page 1
Date of Hearing: July 2, 2007
ASSEMBLY COMMITTEE ON TRANSPORTATION
Pedro Nava, Chair
SB 839 (Calderon) - As Amended: June 25, 2007
SENATE VOTE : 24-10
SUBJECT : Fireworks
SUMMARY : Revises the penalties for possession and
transportation of dangerous fireworks, as specified, and
establishes a fund from the proceeds of all fines and fees
collected related to dangerous fireworks violations earmarked
for enforcement of dangerous fireworks law. Specifically, this
bill :
1)Provides that on or before July 1, 2008, the State Fire
Marshall (SFM) is to 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 are to include a cost
analysis related to capturing and reporting the data.
2)Provides that the Office of the SFM is to consult with public
safety agencies and other stakeholders as deemed necessary by
the SFM and develop a model ordinance that permits local
jurisdictions to adopt a streamlined enforcement and
administrative fine procedures (limited to civil fines)
related to the possession of fireworks. The model ordinance
is to include provisions for reimbursing the Office of the SFM
for the costs associated with the disposal of seized
fireworks.
3)Provides the following remedies for violations related to
possession of dangerous fireworks, except as to a person who
holds and is operating within the scope of a valid license, as
specified:
a) A person who possesses a gross weight, including
packaging, of less than 25 pounds of unaltered dangerous
fireworks, as defined, is guilty of a public offense
punishable by a fine of not less than $500 or more than
$1,000, or by imprisonment in the county jail for up to one
year, or both.
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b) Upon a second or subsequent conviction, a person shall
be punished by a fine of not less than $1,000 or by
imprisonment in the county jail not exceeding one year or
both.
c) A person who possesses a gross weight, including
packaging, of not less than 25 pounds or more than 100
pounds of unaltered dangerous fireworks, as defined, is
guilty of a public offense, punishable by a fine of not
less than $1,000 or more than $5,000, and by imprisonment
in the county jail for up to one year.
d) A person who possesses a gross weight, including
packaging, of not less than 100 pounds or more than 5,000
pounds of unaltered dangerous fireworks, as defined, is
guilty of a public offense, punishable by a fine of not
less than $5,000 or more than $10,000, and by imprisonment
in the county jail for not exceeding one year, or by 16
months, two or three years in the state prison.
e) A person who possesses a gross weight, including
packaging, of more than 5,000 pounds of unaltered dangerous
fireworks, as defined, is guilty of a public offense,
punishable by a fine of not less than $10,000 or more than
$50,000, and by either imprisonment in the county jail for
not exceeding one year or imprisonment in state prison.
4)Provides increased subsequent fines up to $5,000 for a person
who violates fireworks statutes by selling, giving, or
delivering any dangerous fireworks to any person less than 18
years of age, from the previous $500 to $1,000 fine limit.
5)The SFM, in conjunction with the Department of Motor Vehicles,
is to develop regulations and procedures to temporarily
suspend the commercial motor vehicle license of a person who
is operating a commercial motor vehicle while transporting
unaltered and or dangerous fireworks, as defined, and having a
gross weight including packaging, of 10,000 pounds or more.
6)Provides that a driver of a commercial motor vehicle is not to
operate a commercial motor vehicle for three years if the
driver is convicted of transporting unaltered and or dangerous
fireworks, and having a gross weight, including packaging, of
10,000 pounds or more, as specified.
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7)Requires the SFM, at least once a year and in consultation
with the Attorney General, to serve notice to any individual
or business known to supply fireworks that any unauthorized
shipments of fireworks into California will result in an
immediate report to federal authorities with a request for
relevant federal prosecution.
8)Provides that fines and forfeitures imposed by or collected in
any court of this state, as a result of citations issued by a
public safety agency for fireworks violations, except for
administrative fees imposed by local jurisdictions, are to be
deposited, as soon as practicable after the receipt of the
fine or forfeiture, with the county treasurer of the county in
which the court is situated. Amounts deposited pursuant to
this section are to be paid at least once a month as follows:
a) 65% to the Treasurer, by warrant of the county auditor
drawn upon the requisition of the clerk or judge of the
court, for deposit in the State Fire Marshal Fireworks
Enforcement and Disposal Fund, as defined, on order of the
Controller.
b) 35% to the local public safety agency in the county in
which the offense was committed to reimburse the local
public safety agency for expenses, including, but not
limited to, the costs for handling, processing,
photographing, and storing seized dangerous fireworks.
9)Requires that, to carry out the disposal of dangerous
fireworks, the SFM shall acquire and use statewide mobile
dangerous fireworks destruction units to collect and destroy
seized dangerous fireworks from local and state agencies.
10)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, as specified.
11)Requires that SFM establish regulations, with the Office of
Administrative Law, to assess fees on all import and export,
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wholesale and retail fireworks licensees in California to be
deposited in the State Fire Marshal Fireworks Enforcement and
Disposal Fund. In determining the appropriate amount of the
fees, the SFM is to consult with the fireworks industry and
import and export, wholesale and retail fireworks licensees.
The total amount of fees is not to exceed the reasonable costs
of statewide programs.
12)Establishes the State Fire Marshal Fireworks Enforcement and
Disposal Fund in the State Treasury.
13)Specifies that all of the monies collected for fines related
to specified violations of fireworks and all monies collected
in relation to the sale of safe and sane fireworks, as
specified, shall be deposited in the fund and awarded, upon
appropriation by the Legislature, to the SFM for the exclusive
use in statewide programs for all of the following:
a) To further assist in statewide programs for the
enforcement, prosecution related to, disposal, and
management of seized dangerous fireworks.
b) The education of public safety agencies in the proper
handling and management of dangerous fireworks as well as
safety issues involving all fireworks and explosives.
c) To assist the SFM in identifying and evaluating methods
to capture more detailed data relating to fires, damages,
and injuries caused by both dangerous and safe and sane
fireworks, and to assist with funding the eventual
development and implementation of those methods.
d) To further assist in public safety and education efforts
within the general public as well as public safety agencies
on the proper and responsible use of safe and sane
fireworks.
14)Provides that the SFM is to appoint deputies and employees as
may be required to carry out these provisions, subject to
approval in the annual Budget Act.
EXISTING LAW : Provides that any person who violates fireworks
statutes by selling, giving, or delivering any dangerous
fireworks is guilty of a misdemeanor and upon a first conviction
is to be punished by a fine of not less than $500 and more than
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$1,000, or/and by imprisonment in the county jail, not exceeding
one year, or both.
Existing law also provides that upon any second or subsequent
conviction of the offense, the person is to be punished by the
penalties of a fine of not less than $500 or more than $1,000
and by imprisonment in the county jail for one year. The person
shall not be granted probation and the execution of the sentence
imposed upon the person will not be suspended by the court.
Existing law provides that a person who violates fireworks
statutes, as specified, by selling, giving, or delivering any
dangerous fireworks to any person under 18 years of age is
guilty of a misdemeanor and upon a first conviction, the penalty
would be no less than $500 nor more than $1,000 or/and
imprisonment in the county jail for not exceeding one year or
both.
Existing law provides that any person who violates this part
involving any dangerous fireworks item, or any combination of
any dangerous fireworks items, having the total net weight of
explosive material of 7,500 grains or more, is guilty of a
public offense, and upon conviction is to be punished by
imprisonment in the state prison, or in the county jail for not
more than one year, or by a fine of not more than $5,000, or by
both the fine and imprisonment.
FISCAL EFFECT : Unknown
COMMENTS : According to the author, the SFM is authorized by
statute to enforce regulations concerning illegal fireworks and
to see to their disposal. However, the author adds that the SFM
does not have the staffing nor funding necessary to dispose of
fireworks in a manner which complies with federal and state
environmental protection laws.
Annually, large numbers of fireworks are seized by fire
department and law enforcement agencies without imposing
criminal action on perpetrators. The authority for cost
recovery by a local agency is provided in statute but very few
agencies have pursued this option.
The author states that current law regarding the illegal
importation, sale, and use of illegal fireworks is confusing to
public safety (police and fire) officials as well as the
judicial system. Public safety agencies are often unsure of the
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charges that should be filed against people who commit these
crimes. The author asserts that local agencies have told the
SFM that it is difficult to receive cooperation for prosecution
by the city or district attorneys because the law is unclear and
in most instances the crime is considered a misdemeanor, making
cost recovery more difficult.
Based on information obtained from law enforcement gang units,
some organized gangs have reverted to the sale of illegal
fireworks to obtain money prior to July 4th. Revenue obtained
by these illegal sales is reported to be from eight to ten times
the purchase costs. Often fireworks that are illegal in
California are legal in surrounding states therefore most of the
large quantities of fireworks imported illegally into California
are from these states.
The author points out that in order to reduce the flow of
illegal fireworks into California it is necessary to develop
regulations that suspend the commercial motor vehicle license of
a person who is transporting dangerous fireworks having a gross
weight of 10,000 pounds or more and if convicted, the license
revocation for a period of three years.
Current law, which prohibits possession and sale of dangerous
fireworks, as defined, delineates penalties based on the net
weight of the explosive material contained in the fireworks.
According to the sponsor, to determine the net weight involves
cutting into the fireworks to remove the explosive powder, which
makes current law both dangerous and impractical to enforce.
This bill addresses that problem by revising the statutes which
regulate dangerous fireworks to refer to gross weight, including
packaging. The sponsors, the California Department of Forestry
and Fire Protection (CDF), estimate that 25 pounds gross weight
of fireworks would net no more than 7,500 grains of explosive
materials. 7,500 grains equals one pound.
The sponsors also state that, although current law provides for
up to one year in jail for most offenses involving dangerous
fireworks, and potential prison time for possession or sale of
larger quantities, these offenses are rarely enforced as a
criminal matter. The sponsors contend that this bill addresses
this issue by creating heavier fines for specific offenses and
directing that the proceeds of those fines be divided with 35%
dedicated to the "local public safety agency in the county in
which the offense was committed to reimburse the local public
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safety agency for expenses, including, but not limited to, the
costs for handling, processing, photographing, and storing
seized dangerous fireworks," and 65% dedicated to a State Fire
Marshal Fireworks Enforcement and Disposal Fund, for use in
enforcing fireworks statutes.
According to the sponsor, the possession of less than 100 pounds
of dangerous fireworks is likely intended for personal use.
Possession of more than 100 pounds, up to more than 10,000
pounds, increases the likelihood that the fireworks are intended
for resale on the black market, thus the proposed new penalties
are designed to increase as the likelihood of "transportation
and possession for sale" increases.
Related legislation : AB 476 (De La Torre) 2007, would have
increased fines for violating state fireworks laws, including
selling, possessing, using, or transporting dangerous fireworks
to persons under 18 years of age. It would have also authorized
the impounding of vehicles transporting dangerous fireworks.
CDF did not have an approved position on the bill. That bill
was held under submission in the Assembly Appropriations
Committee.
Previous legislation :
AB 2310 (Torrico) 2006, would have provided increased penalties
to any person who unlawfully possessed dangerous fireworks or
safe and sane fireworks. That bill died on the Senate floor.
AB 2039 (Tran) 2006, would have authorized an increase in the
maximum fine imposed on a person possessing fireworks having a
total net weight of 7,500 grains of explosive material. That
bill was never heard and died in the Assembly Committee on
Governmental Organization.
AB 923 (Chavez) 2006, would have authorized the sale of
certified safe and sane fireworks during a specified period and
established the State Fire Marshal Dangerous Fireworks
Management Fund to cover disposal cost associated with seized
fireworks. That bill died in the Assembly Committee on
Governmental Organization.
AB 1295 (Bermudez) 2006, would have authorized the sale of
certifiable safe and sane fireworks during a specified period,
and would have required SFM to establish and collect an
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additional fee on fireworks to cover the disposal of fireworks.
That bill died in the Assembly Appropriations Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
Department of Forestry and Fire Protection (Sponsor)
American Federation of State, County and Municipal Employees
American Promotional Events
California Fire Chiefs Association
California State Firefighters Association
City of Whittier
Department of Forestry and Fire Protection
Fresno Fire Department
Los Angeles County Sheriffs
Monterey County Fire Investigators Association
Opposition
None received
Analysis Prepared by : Alejandro Esparza / TRANS. / (916)
319-2093