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COMMITTEE REPORT
May 12, 2004
H. 3409
Introduced by Reps. Clemmons, Altman, Bailey, Chellis, Clark, Edge, Keegan, Lloyd, Mahaffey, M.A. Pitts, Viers, Martin and Miller
S. Printed 5/12/04--S.
Read the first time March 3, 2004.
To whom was referred a Bill (H. 3409) to amend Section 4-9-30, as amended, Code of Laws of South Carolina, 1976, relating to the powers of county governments, so as to authorize a county by ordinance to regulate or prohibit the discharge of otherwise lawful fireworks in parts of the county where because of population density or contiguity to municipalities, etc., respectfully
That they have duly and carefully considered the same and recommend that the same do pass with amendment:
Amend the bill, as and if amended, by striking the bill in its entirety and inserting therein the following:
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 23-35-175, SO AS TO PROVIDE A PROCESS FOR ESTABLISHING FIREWORKS PROHIBITED ZONES WITHIN COUNTIES AND MUNICIPALITIES; AND TO AMEND SECTION 15-78-60, RELATING TO EXCEPTIONS TO THE WAIVER OF IMMUNITY UNDER THE SOUTH CAROLINA TORT CLAIMS ACT, SO AS TO EXEMPT LOCAL GOVERNING BODIES FROM LIABILITY FOR LOSS FROM GRANTING OR DENYING AN APPLICATION FOR EXTENDING A FIREWORKS PROHIBITED ZONE.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Chapter 35, Title 23 of the 1976 Code is amended by adding:
"Section 23-35-175. (A) As used in this section:
(1) 'Fireworks' means ICC Class C Common Fireworks as defined and enumerated in Section 23-35-10.
(2) 'Fireworks Prohibited Zone' means property designated through the processes in this section as an area in which fireworks are prohibited from being knowingly and wilfully discharged.
(3) 'Local governing body' means the governing body of a county or municipality.
(4) 'Managing authority' means a governing board of a condominium association.
(5) 'Subject property' means the property controlled by the owner, lessee, or managing authority for which a Discharge of Fireworks Prohibited Agreement has been filed.
(B) It is unlawful to knowingly and wilfully discharge fireworks from, in, or into a Fireworks Prohibited Zone. A person who knowingly and wilfully discharges fireworks from, in, or into a Fireworks Prohibited Zone is guilty of a misdemeanor and, upon conviction, must be punished:
(1) for a first offense by a fine of not more than one hundred dollars or imprisonment for not more than thirty days; and
(2) for a second and subsequent offense by a fine of not more than two hundred dollars or imprisonment for not more than thirty days.
(C) An owner, a lessee, or managing authority of real property may establish a Fireworks Prohibited Zone by:
(1) filing a Discharge of Fireworks Prohibited Agreement with the law enforcement agency having jurisdiction over the subject property; and
(2) posting at least two signs or placards in conspicuous locations on the subject property. These signs or placards must be posted to be visible from any street or thoroughfare the subject property abuts and any public land sharing a common boundary with the subject property. The signs or placards must measure not less than twelve inches by twelve inches and bear the following inscription:
'DISCHARGE OF FIREWORKS PROHIBITED
VIOLATORS WILL BE PROSECUTED'
In addition to the inscription, the signs or placards must identify the subject property for which the Discharge of Fireworks Prohibited Agreement has been filed and, if applicable, any adjoining public property to which the local governing body has extended the Fireworks Prohibited Zone as provided in this section.
(D) The Discharge of Fireworks Prohibited Agreement must be in the following form:
DISCHARGE OF FIREWORKS PROHIBITED AGREEMENT
DATE:____________________________________________
ADDRESS OF SUBJECT PROPERTY:
____________________________________________________
____________________________________________________
NAME OF SUBJECT PROPERTY (IF COMMERCIAL):
____________________________________________________
____________________________________________________
PROPERTY BOUNDARIES OR LEGAL DESCRIPTION OF SUBJECT PROPERTY:
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
I, _________, the undersigned, being the owner, lessee, or managing authority of the above described subject property, establish for my period of ownership, occupancy, or authority over the subject property a Fireworks Prohibited Zone for the subject property and, if applicable, any adjoining public property to which the local governing body has extended the Fireworks Prohibited Zone. By filing this agreement, I request that the applicable law enforcement agency enforce the prohibition of the discharge of fireworks on said subject property and, if applicable, any adjoining public property to which the local governing body has extended the Fireworks Prohibited Zone to the fullest extent of the law.
I acknowledge that this Discharge of Fireworks Prohibited Agreement exists only for the time period that I own, lease, or manage the subject property, or until I rescind the Agreement, whichever occurs first.
I agree to post two signs or placards measuring not less than twelve inches by twelve inches in conspicuous locations on the subject property. The signs or placards must: (1) identify the subject property and, if applicable, any adjoining public property to which the local governing body has extended the Fireworks Prohibited Zone, and (2) bear the following inscription:
'DISCHARGE OF FIREWORKS PROHIBITED
VIOLATORS WILL BE PROSECUTED'
__________________________________________
OWNER, LESSEE, OR MANAGING AUTHORITY
__________________________________________
WITNESS
(E)(1) If authorized by a decision of the local governing body as provided in this subsection, an owner, lessee, or managing authority that has filed a Discharge of Fireworks Prohibited Agreement with a local law enforcement agency may extend the Fireworks Prohibited Zone beyond the subject property:
(a) to the low water mark of all oceanic bodies of water adjoining the subject property;
(b) to the center line of any street or thoroughfare that abuts the subject property; or
(c) onto any public land sharing a common boundary with the subject property for a distance not to exceed five hundred feet.
(2) The owner, lessee, or managing authority must apply for the extension in the office of the local governing body on the following form:
APPLICATION FOR EXTENSION OF FIREWORKS PROHIBITED ZONE
DATE:___________________________________________
ADDRESS OF SUBJECT PROPERTY:
____________________________________________________
____________________________________________________
NAME AND ADDRESS OF APPLICANT:
____________________________________________________
____________________________________________________
____________________________________________________
I ,_________, the undersigned, am the owner, lessee, or managing authority of the above described subject property for which a Discharge of Fireworks Prohibited Agreement was filed with the ____________ law enforcement agency on __________. I am attaching with this application a copy of the Discharge of Fireworks Prohibited Agreement.
I have circled the following applicable description of the public property onto which I request the zone to be extended:
(a) to the low water mark of all oceanic bodies of water adjoining the subject property;
(b) to the center line of any street or thoroughfare that abuts the subject property; or
(c) onto any public land sharing a common boundary with the subject property for a distance not to exceed five hundred feet.
Below I have briefly described the public property onto which this application proposes to extend the fireworks prohibited zone:
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
If authorized by a decision of the local governing body to extend the Fireworks Prohibited Zone, I agree to identify the subject property and extended public property included in the Fireworks Prohibited Zone on two signs or placards measuring not less than twelve inches by twelve inches posted in conspicuous locations on the subject property.
__________________________________________
OWNER, LESSEE, OR MANAGING AUTHORITY
__________________________________________
WITNESS
(3) A local governing body may provide by ordinance for additional information to be included in the application. The local governing body must not require a fee for this application.
(4) In considering whether a Fireworks Prohibited Zone may be extended onto public property as provided in item (1), the local governing body must:
(a) schedule a public hearing within a reasonable time from which the application is made;
(b) give fifteen days' public notice of the hearing in a newspaper of general circulation in the community; and
(c) receive testimony from interested persons, their agents, or their attorneys at the public hearing.
(5) No later than five calendar days following the public hearing, the local governing body must issue a written decision, including all findings of fact and rationales upon which the determination is made, concerning whether the Fireworks Prohibited Zone is to be extended. If the local governing body authorizes the extension of a Fireworks Prohibited Zone, the local governing body's decision must be filed by the owner, lessee, or managing authority with the Discharge of Fireworks Prohibited Agreement for the subject property at the local law enforcement agency.
(F) A local governing body or local law enforcement agency is authorized to post appropriate signs or placards indicating the location of Fireworks Prohibited Zones in areas where contiguous properties have filed a Discharge of Fireworks Prohibited Agreement.
(G) A person may be prosecuted pursuant to the provisions of this section only if the subject property of the Fireworks Prohibited Zone is posted as required by this section.
(H) Unless restricted or prohibited by a lease or contract, a lessee may establish a Fireworks Prohibited Zone and apply for an extension of the zone onto public property as provided in this section during the time of the lease.
(I) A Discharge of Fireworks Prohibited Agreement exists only:
(1) during the ownership, lease, or authority of the person filing the agreement.; or
(2) until the owner, lessee, or managing authority rescinds the agreement by withdrawing the documentation filed with the local law enforcement agency. If the subject property is no longer established as a Fireworks Prohibited Zone, any extension by a local governing body of the Fireworks Prohibited Zone to public property is unenforceable.
(J) The provisions of this section do not apply to a professional fireworks display show or demonstration that has been permitted or licensed to operate by the local governing body or has been authorized to operate as provided by law.
(K) Nothing in this section is designed to abrogate any civil remedies available under statutory or common law."
SECTION 2. Section 15-78-60 of the 1976 Code, as last amended by Act 407 of 2000, is further amended by adding an appropriately numbered item to read:
"(___) the grant or denial by a governing body of a county or municipality as provided in Section 23-35-175 of an application to extend a Fireworks Prohibited Zone beyond the subject property for which a Discharge of Fireworks Prohibited Agreement has been filed."
SECTION 3. This act takes effect upon approval by the Governor. /
Renumber sections to conform.
Amend title to conform.
LARRY A. MARTIN for Committee.
TO AMEND SECTION 4-9-30, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE POWERS OF COUNTY GOVERNMENTS, SO AS TO AUTHORIZE A COUNTY BY ORDINANCE TO REGULATE OR PROHIBIT THE DISCHARGE OF OTHERWISE LAWFUL FIREWORKS IN PARTS OF THE COUNTY WHERE BECAUSE OF POPULATION DENSITY OR CONTIGUITY TO MUNICIPALITIES, THE PUBLIC SAFETY REQUIRES THIS REGULATION.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Chapter 35, Title 23 of the 1976 Code is amended by adding:
"Section 23-35-175. (A) As used in this section:
(1) 'Fireworks Prohibited Zone' means an area in which fireworks are prohibited from being discharged. A Fireworks Prohibited Zone shall extend beyond the subject property to the low water mark of all oceanic bodies of water adjoining the subject property. A Fireworks Prohibited Zone includes the area:
(a) contained within the boundaries of the subject property;
(b) extended from the boundaries of the subject property to the center line of any street or thoroughfare that it abuts; and
(c) extended from the boundaries of the subject property into any public land sharing a common boundary for a distance not to exceed five hundred feet.
(2) 'Managing authority' means a governing board of a condominium association.
(3) 'Subject property' means the property controlled by the owner, lessee, or managing authority of the property for which a Discharge of Fireworks Prohibited Agreement has been filed.
(B) It is unlawful to discharge fireworks from, in, or into a Fireworks Prohibited Zone. A person who discharges fireworks from, in, or into a Fireworks Prohibited Zone is guilty of a misdemeanor and, upon conviction, must be punished:
(1) for a first offense by a fine of not more than one hundred dollars or imprisonment for not more than thirty days; and
(2) for a second and subsequent offense by a fine of not more than two hundred dollars or imprisonment for not more than thirty days.
(C) An owner, a lessee, or managing authority of real property may establish a Fireworks Prohibited Zone by:
(1) filing a Discharge of Fireworks Prohibited Agreement with the law enforcement agency having jurisdiction over the subject property; and
(2) posting at least two signs or placards in conspicuous locations on the subject property. These signs or placards must be posted so as visible from any street or thoroughfare the subject property abuts and any public land sharing a common boundary with the subject property. The sign or placard must measure not less than twelve inches by twelve inches and bear the following inscription:
'DISCHARGE OF FIREWORKS PROHIBITED
VIOLATORS WILL BE PROSECUTED'
(D) The Discharge of Fireworks Prohibited Agreement must be in the following form:
DATE:_____________________________________
SUBJECT PROPERTY ADDRESS:___________
NAME OF SUBJECT PROPERTY (IF COMMERCIAL): __________________________
PROPERTY BOUNDARIES OR LEGAL DESCRIPTION:____________________________
I ,_________, the undersigned, being the owner/lessee or managing authority of the above described subject property, hereby create a Fireworks Prohibited Zone for the above listed subject property and request that the applicable law enforcement agency enforce the prohibition of the discharge of fireworks on said subject property to the fullest extent of the law.
I agree to post a sign or placard in a conspicuous location on the above listed subject property which measures not less than twelve inches by twelve inches and bears the following inscription:
'DISCHARGE OF FIREWORKS PROHIBITED
VIOLATORS WILL BE PROSECUTED'
__________________________________________
OWNER/LESSEE OR MANAGING AUTHORITY
__________________________________________
WITNESS
(E) A governmental entity is authorized to post appropriate signs or placards indicating the location of Fireworks Prohibited Zones in areas where there are contiguous properties which have filed a Discharge of Fireworks Prohibited Agreement."
SECTION 2. This act takes effect upon approval by the Governor.
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