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Agenda Item - 2021-05-04 - Number 7.2 - Ordinance 2870, Temporary Prohibition of Use and Sales of Fireworks 7.2 COUNCIL REPORT ___ o QREGoNI' Subject: Temporary Prohibition of Use and Sales of Fireworks, and Causing or Permitting Open Burning, Outdoor Open Flames, Outdoor Sparks or Outdoor Smoking During Extreme Fire Risk (Ordinance 2870) Meeting Date: May 4, 2021 Staff Member: Don Johnson, Fire Chief Department: Fire Department Action Required Advisory Board/Commission Recommendation ❑ Motion ❑ Approval ❑ Public Hearing ❑ Denial ❑X Ordinance ❑ None Forwarded ❑ Resolution ❑ Not Applicable ❑ Information Only Comments: ❑ Council Direction ❑ Consent Agenda Staff Recommendation: Enact Ordinance 2870, to allow the Fire Chief or Fire Marshal to temporarily ban the sales and use of legal ground-based fireworks and other flame or spark producing activities when the risk of fire in Lake Oswego is extreme. Recommended Language for Motion: Move to enact Ordinance 2870 Project/ Issue Relates To: Council Goal 1B for 2021, "Update fireworks and outdoor fire policies." Issue before Council (Highlight Policy Question): ❑X Council Goals/Priorities ❑Adopted Master Plan(s) ❑Not Applicable BACKGROUND On March 11, 2021 Council approved a Work Plan to achieve Council Goal 1B for 2021, "Update fireworks and outdoor fire policies." 503.635.0215 380 A Avenue PO BOX 369 Lake Oswego, OR 97034 www.lakeoswego.city Page 2 Staff addressed the Work Plan by first evaluating state law and the city code to ensure the city code meets and takes advantage of all state law provisions; and by evaluating local fines and fees to determine if any improvements should be recommended to Council. Staff also researched fireworks ordinances in other municipalities that have more stringent ordinances banning fireworks. Finally, staff conducted extensive outreach by using an online community survey, community listening sessions, and meetings with constituent groups. Staff confirmed that the city code aligns well with the State Fire Code, and that local fines are set at the state maximum. DISCUSSION Community outreach efforts produced good results, with more than 850 participants. The majority of respondents (65%) felt education and enforcement are important and that a local ordinance allowing a temporary ban based on an extreme fire danger was a good idea (85% of respondents favored). Less than half of all respondents supported a full ban on fireworks sales and use. Staff believes that Council's enactment of an ordinance allowing the Fire Marshal or Fire Chief to temporarily ban some or all fireworks, flame or spark producing activities, and outdoor smoking—which was the scope of the Declaration of State of Emergency issued by the City Manager on Sept. 11, 202, under her emergency authority of LOC Art. 12.20 and ORS Ch.401due to Clackamas County wildfires---- will allow for increased safety of residents when there is an extreme risk of fire danger, without prohibiting those same activities that are at other times safe when the risk of fire is not extreme. Staff believes that an educational campaign targeted at safe use and disposal of legal fireworks will be beneficial to residents, along with a broader campaign focused on wildfire prevention and readiness. Staff will be addressing that educational component utilizing the City's Communication Team beginning in late May and will build an annual campaign to increase awareness, and encourage community safety. Based on the research conducted, Staff developed several policy options for Council consideration ranging from maintaining the status quo, to increased education and enforcement, to enacting an ordinance that would allow a temporary ban based on fire risk, to a full ban on all fireworks. Staff presented information to the Council on April 20, 2021, to facilitate a Study Session to review fireworks policies and consider potential updates and policy options related to the sale and use legal ground-based fireworks in Lake Oswego. Council directed Staff to return with an Ordinance authorizing the Fire Chief or Fire Marshal to temporarily ban the sales and use of legal ground-based fireworks and other flame or spark producing activities when they determine that the risk of fire in Lake Oswego is extreme. The Fire Chief or Fire Marshal indicated that they will make that determination by relying heavily on the National Fire Danger 503.635.0215 380 A Avenue PO BOX 369 Lake Oswego, OR 97034 www.lakeoswego.city Page 3 Rating System (NFRDS), Extreme classification, provided by the Oregon Department of Forestry (Option 3). (The City Attorney's Office advises that the City cannot delegate that rating decision to the Oregon Dept. of Forestry, and accordingly the Fire Chief or Fire Marshal shall make the decision based on their professional judgment using available information resources, including the Dept. of Forestry fire risk ratings based on the NFRDS.) Council also directed Staff to develop a fire prevention education program focusing of the safe personal use and disposal of legal ground-based fireworks (Option 2) RECOMMENDATION Enact Ordinance 2870 as amended. ATTACHMENTS 1. Ordinance 2870 503.635.0215 380 A Avenue PO BOX 369 Lake Oswego, OR 97034 www.lakeoswego.city ATTACHMENT 1 ORDINANCE 2870 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LAKE OSWEGO AMENDING LOC ARTICLE 15 FIRE PREVENTION CODE, TO ADD SECTION 15.06.616 TEMPORARY PROHIBITION OF USE AND SALES OF FIREWORKS, AND CAUSING OR PERMITTING OPEN BURNING, OUTDOOR OPEN FLAMES, OUTDOOR SPARKS OR OUTDOOR SMOKING DURING EXTREME FIRE RISK. The City of Lake Oswego ordains as follows: Section 1. LOC Article 15.06 of the Lake Oswego Code is hereby amended by adding the following Section 15.06.616 Fireworks Sales and Use Temporary Ban text shown in double-underlined type as follows: 15.06.616 Temporary Prohibition of Use and Sales of Fireworks, and Causing or Permitting Open Burning, Outdoor Open Flames, Outdoor Sparks or Outdoor Smoking During Extreme Fire Risk 1. Purpose: To reduce the risk of loss of life and damage to property and to the urban tree canopy from fire during periods of extreme fire risk in the Lake Oswego area. 2. Definitions: a. Fire Chief/ Fire Marshal: The appointed Fire Chief and Fire Marshal of the City of Lake Oswego. b. Fireworks: "Fireworks" as defined in ORS 480.111(7). c. Person: individual or a business entity; for the purpose of this definition, "business entity" means a corporation, association, partnership, limited liability company, limited liability partnership or other legal entity. d. Seller: Any person that sells, or offer for sale, or expose for sale fireworks within the City of Lake Oswego for retail or wholesale purposes, including persons required to obtain permits for fireworks sales or permits under ORS 480.150. 3. Analysis of Fire Danger;Authority to Issue Order a. The Fire Chief or Fire Marshal shall, as such times as deemed appropriate for fire risk, use reasonably available sources of information, e.g., National Weather Service and Or. Dept. of Forestry District 13 reporting and modeling based on the National Fire Danger Rating (NFDR) System,to make a judgment based on forecasted temperature, wind, relative humidity,fuel loads, and topography of current or predicted conditions as to the level of fire danger within the City, including external fire sources and the risk of fire ignition and spread from any source within the City. b. If, in the Fire Chief's or Fire Marshal's judgment,the fire risk is Extreme under the NFDR classification (fires start quickly, spread furiously, and burn intensely; all fires are potentially serious),the Fire Chief or Fire Marshal is authorized to issue an Order under subsection 4 temporarily prohibiting some or all of the following: i. The use and sale of fireworks; Ordinance No. 2870 Page 1 of 4 ii. Any open burning, including but not limited to, bonfires, recreational fires and outdoor fireplaces; iii. Any outdoor open flames, including: (1). Open flame cooking devices, e.g., charcoal, gas and propane grills, and camp stoves; (2). Candles and lanterns; (3). Outdoor heaters; (4). Torches of any kind, including decorative torches and torches used for construction and manufacturing (e.g., welding equipment); and (5). Lighters or matches. iv. Outdoor smoking. v. Use of powered yard maintenance and construction equipment that creates sparks, including but not limited to, lawnmowers, chainsaws, blowers and weed whackers. vi. Use of any device that causes an outdoor spark or flame, as outlined in the 2019 Oregon Fire Code. 4. Temporary Prohibition of the Use and Sale of Fireworks. a. Upon issuance of a written Order by the Fire Chief or the Fire Marshal pursuant to this section, no person shall, as relevant to the prohibition under Section 3.b above, i. Sell, or offer for sale, expose for sale, use, explode or have exploded fireworks; ii. Cause, permit or suffer any open burning; iii. Cause, permit or suffer any outdoor open flames; iv. Cause, permit or suffer outdoor smoking; v. Cause, permit or suffer use of powered yard maintenance and construction equipment that creates sparks; vi. Cause, permit or suffer use of any device that cause an outdoor spark or flames, as outlined in the 2019 Oregon Fire Code within Lake Oswego during the period of time stated in the Order, except either in accordance with the terms of the Order or the person has been issued a written exemption by the Fire Chief or Fire Marshal and the person's use conforms to the terms of the exemption. b. The Order shall: i. If less than the entirety of the area within the city boundaries is to be subject to the Order, identify the area(s)that are subject to the Order; ii. If the prohibition is to be less than 24 hours a day, state the time period rohibited by the Order; iii. If the prohibition is to apply to only certain classifications of fireworks, identify the classifications of fireworks subject to the Order; iv. If the prohibition is to apply to only certain types of activities under subsection 4.a, above, identify the prohibited activities; and v. Identify those persons who, without a written exemption issued by the Fire Chief or Fire Marshal, are exempt from the Order. Unless specifically stated in the Order, the Order supersedes any previously issued general Ordinance No. 2870 Page 2 of 4 permit, such as a permit to sell fireworks, to conduct open burning, to perform landscaping or construction work, or to use a device may cause an outdoor spark or flame. c. The Fire Chief or Fire Marshal may issue written exceptions to persons that, in the Fire Chief's or Fire Marshal's determination, the person will conduct sales or use of fireworks, or conduct other activities prohibited by the Order in a manner that will meet the purposes of this Section and will not likely cause other persons to reasonably believe that the Order is terminated. d. The Order may be revised, extended or terminated in the same manner as its issuance. 5. Notice of Order. The Fire Chief or Fire Marshal issuing the Order shall cause notice of the Order to be given to the public and sellers by: a. Posting a copy of the Order in a place visible in each fire station of the City, City Hall, and Library; b. For Orders that prohibit the sale or use of fireworks, mailing to each Seller that has a permit from the Fire Chief for the retail sale of consumer fireworks, as defined by ORS 480.111, at such mailing address provided on the Seller's application to sell consumer fireworks. The Fire Chief may, in lieu of mailing, either: i. email a copy of the Order to the Seller's email address on the Seller's application to sell consumer fireworks, or to such other electronic mail delivery that is reasonably calculated to notify the Seller; or ii. personal delivery of a copy of the Order to a person that is apparently in charge of the sale of consumer fireworks at the Seller's locations approved for the sale of consumer fireworks. c. For Orders that prohibit the use of powered yard maintenance and construction equipment, mailing to each person that has a city business license for such business, at such mailing address provided on the business license application. The Fire Chief may, in lieu of mailing, either: i. email a copy of the Order to the business permit licensee's email address on the business license application, or to such other electronic mail delivery that is reasonably calculated to notify the business permit licensee; or ii. personal delivery of a copy of the Order to a person that is apparently in charge of the business at the business license's business location(s). d. Such other means as the Fire Chief or Fire Marshal may find provides public notice, e.g.,to the local media, city website, local school district. 6. Penalties. A violation of any provision of this Subsection 4 is a civil violation and shall be enforced pursuant to the provisions of LOC 34.04.101 to 34.04.145, and subject to the maximum fine as provided by LOC 13.02.020. Each sale or use of a firework shall constitute a separate violation. Section 2. Severability. The provisions of this ordinance are severable. If any portion of this ordinance is for any reason held to be invalid, such decision shall not affect the validity of the Ordinance No. 2870 Page 3 of 4 remaining portions of this ordinance. Enacted at the regular meeting of the City Council of the City of Lake Oswego held on the 4th day of May, 2021. AYES: NOES: ABSTAIN: EXCUSED: Joseph M. Buck, Mayor ATTEST: Kari Linder, City Recorder APPROVED AS TO FORM: Evan Boone, City Attorney Pro Tem Ordinance No. 2870 Page 4 of 4