Report to: General Committee Report Date: 2007-09-25

SUBJECT: Fireworks By-Law Amendment

PREPARED BY: Sheila Birrell, Town Clerk, Extension 4729

RECOMMENDATION:

That By-Law No. 2001-137, “Being a By-Law Respecting the Regulating, Licensing, Sale and Discharge of Fireworks” be repealed and a new by-law respecting the regulating, sale and discharge of fireworks be enacted for the purpose of:

• Allowing the sale of family fireworks from businesses and mobile sales premises by permit during the seven days immediately proceeding Victoria and Canada Day;
• Reduce the distance separation for a mobile vendor from 20 to 10 metres from any road or occupied parking space and from 40 to 20 metres of an occupied building;
• Prohibiting mobile vendors from locating or operating from any municipal street, boulevard or road allowance;
• Requiring insurance in the amount of two million dollars as a condition of obtaining a permit;
• Requiring unsold fireworks in excess of 25 kilograms gross weight be returned to the manufacturer or the distributor within seven days of Canada Day and Victoria Day to avoid the potential for inappropriate storage;
• Requiring all permit holders to attend or have someone attend a fireworks training and information seminar and to ensure a trained person is on site during business operations;
• Requiring a permit for the discharge of display and theatrical fireworks and compliance with the Town’s Noise By-Law prior to the issuance of the permit;

And that By-Law No. 2002-276, “The Fee By-Law be amended to provide for a $150 fee for the required permit for sale of fireworks and the cost of training, with provision for the waiver of the fee for not-for-profit corporations;

And that Staff be authorized to make an application for set fine to assist with enforcement of the by-law;

And that Staff be authorized and directed to do all things necessary to give effect to this resolution.

PURPOSE:

To provide information on a number of issues raised by Members of the General Committee with respect to the proposed revisions to the Fireworks By-Law.

1. Purpose 2. Background 3. Discussion 4. Financial

5. Others (Environmental, Accessibility, Engage 21st, Affected Units) 6. Attachment(s)

BACKGROUND:

On October 16, 2006, the General Committee considered a report from staff recommending that Fireworks By-Law No. 2001-237 be repealed and a new by-law be enacted for the purpose of:

• Licensing the sale of fireworks from permanent locations, as well as from mobile units;
• Restricting mobile sales to only not for profit service clubs or charitable organizations; and
• Requiring all vendors of fireworks to attend a fireworks training and information seminar.

Committee deferred the report pending a Public Information meeting. A public information meeting was held on January 16^{th, 2007} and the following is a compilation of comments made at that time:

Presenter/ Organization	Comments/ Responses
David Burke, Markham Lions	§ Supported proposed by-law requirements § Asked if all persons involved in selling of fireworks required training and was advised that only one representative per permit was proposed to be trained only.
Tom Jacobs, Blast Fireworks Inc.	§ Concerned with restriction of mobile sales to charitable groups only as a way to eliminate fly-by-night (itinerant) operators. § Advised restriction would impact his livelihood. § Suggested training and fee requirements would be a more effective way to eliminate itinerant operators.
Joe Rastin, Victory Fireworks	§ Supported the use of permits and insurance requirements to address fly-by-night operators.
David Porter, Wizard Fireworks	§ Advised his company has been selling fireworks at Markville Mall for 16 years without incident. § Felt that allowing charities only as mobile vendors was unfair to those who make their living in this business. § Supported training if one representative from each company was trained instead of everyone § Supported the insurance requirement for a permit
Sara Greiner, All Star Fireworks	§ Advised that she does not consider the quick profit made by mobile vendors to be fair to year-round vendors and that permanent vendors deserved protection from mobile vendors locating near-by. § Discussion on possible area restrictions for mobile vendors to avoid overlap/ competition with permanent businesses.

BACKGROUND: (cont’d.)

At the May 28^th, 2007 General Committee meeting, Committee deferred Staff’s follow-up report recommending:

• Sale of fireworks from permanent businesses and mobile sales premises by permit
• Establishing a 500 metre separation distance between sales premises
• Prohibiting mobile vendors from operating on municipal streets or boulevards
• Requiring Insurance
• Requiring unsold fireworks to be returned to the manufacturer within seven days
• Requiring necessary training
• Requiring a permit for the discharge of display and theatrical fireworks and compliance with the Noise By-Law.

At that time, Committee raised a number of issues which have been outlined on Schedule “A”, along with Staff’s response.

Two additional issues raised at the May 28^th, 2007 meeting that did not affect the recommendations contained in the report or the two previous reports were: (1) the request for a review of regulations relating to mobile vendors; and (2) clarification regarding the zoning for the sale of fireworks. Staff will be reviewing the matter of mobile vendors in the Unionville area in 2008. It is anticipated further reviews will follow. At the time of discovery, the one permanent vendor in Markham was situated in an industrial zone which is contrary to the Zoning By-Law. The vendor has since relocated but continues to operate in an industrial zone in the same area.

Staff approached the Planning Department to determine whether a land use study of the area was in the foreseeable future and were advised that it was not. Staff then approached the primary landlord in the area because the area is zoned industrial but has almost exclusively retail uses. The landlord is not interested in seeking application for a zone change and further advised that any individual tenant is free to do so. Staff have included in the 2008 Business Plan a request for resources to facilitate the bringing into compliance of the subject area and other areas of concern identified throughout the Town.

On September 10^th, staff again reported back to the General Committee, at which time additional questions were raised. These issues, together with staff’s corresponding responses are attached on Schedule “B”.

OPTIONS/ DISCUSSION:

The proposed by-law, attached hereto as Schedule “C”, is in compliance with the Explosives Act R.S.C. 1985, c.E-17. It deals with fireworks with a gross weight in excess of 1000 kilograms. This would eliminate the need to licence those stores that sell minimal fireworks, for example, WalMart or Mac’s Milk.

Under the proposed by-law, in advance of being licensed for the sale of fireworks, an application must be completed for any Public Fireworks Display (high hazard recreational fireworks). The applicants must have certification from Natural

OPTIONS/DISCUSSION: (cont’d.)

Resources Canada, a copy of which must be submitted with the application along with a picture, certificate of insurance and a letter of permission from the property owners. There is also an application process for event approval for family fireworks.

At the May 28^th, 2007 General Committee meeting, staff were requested to consider exemptions for charitable organizations operating mobile units. Staff did consider the possibility and recommended an exemption to the licence fee would be in line with the character community objectives. All other conditions of the by-law would apply. At the September 10^th, 2007 meeting, staff were asked why they were recommending an exemption. Having surveyed municipalities, four out of five municipalities do not exempt charitable organizations. Despite this, staff continue to recommend an exemption to the licence fee for charitable organizations, as such an exemption is in keeping with Markham’s character community objectives.

The following are new regulations in the proposed by-law:

• Provision for temporary fireworks premise
• Provision for temporary lease fireworks premise
• Application for licence now made to the Fire and Emergency Services as opposed to By-Law Enforcement and Licensing
• Provision for general liability insurance in the amount of $2,000,000 plus an identification and hold harmless undertaking in favour of the Town
• Written consent from the owner of the property to sell fireworks from said property
• Training and on-site of trained individual during hours of operation
• Reduction in the distance separation of a mobile sales premise to a road allowance or occupied parking space, pursuant to the Natural Resource Canada’s Quantity Distance Tables
• Provision of requirement for mobile sales premises to be equipped with fully operational fire extinguishers.

FINANCIAL CONSIDERATIONS AND TEMPLATE: (external link)

N/A

ENVIRONMENTAL CONSIDERATIONS:

N/A

ACCESSIBILITY CONSIDERATIONS:

N/A

ENGAGE 21^ST CONSIDERATIONS:

N/A

BUSINESS UNITS CONSULTED AND AFFECTED:

Fire Department and Legal Department.

RECOMMENDED BY:

________________________ ________________________

Sheila Birrell Andy Taylor

Town Clerk Commissioner of Corporate

Services

ATTACHMENTS:

Schedule “A” – List of Issues and Staff Response from May 28^th, 20-07 General Committee meeting

Schedule “B” – List of Issues and Staff Response from September 10^th, 2007 General Committee meeting

Schedule “C” – Proposed Fireworks By-Law (changes highlighted)

Schedule “A”

Issues Raised by Committee on May 28, 2007 and Staff Response:

Issue Staff Response

Feasibility of restricting mobile vendors Legally, a municipality cannot restrict

to not for profit and charitable groups. vendors from operating for competitive reasons. No change to the by-law is required.

Possible return of unsold fireworks to the Staff are recommending a revision to the by-

Distributor rather than the manufacturer Law that fireworks in excess of 25

kilograms be returned to either the

manufacturer or the distributor as the only

objective is to ensure they are removed.

Temporary occupancies within buildings There is a two month approval process as a

that do not meet fire and building codes pre-condition for licensing for Fire sign off.

that are difficult to regulate. Any occupancy would be required to meet

the Building Code.

Distinction between various categories This is provided for in the definitions.

and size of fireworks

Suggestion that all vendors and all of Staff are recommending that all vendors

their staff attend the required training. attend the required training and that a

trained person must be on site during

business operations.

Suggestion that charitable organizations Staff is recommending a waiver of the fee.

receive a discount when purchasing a

permit.

Staff should attempt to secure information Staff is recommending no action be taken

on the amount of funds raised through on this suggestion.

fireworks.

Possible written consent from the landlord Standard clause in leases respecting

for the use. compliance with all Town by-laws.

Cap the number of permits available for Staff are not recommending this suggestion

possible preferential system for Markham as the Legal Department has advised that

residents. such a system would be susceptible to a

challenge.

Issue Staff Response

Creation of a distance separation system A distance separation for safety reasons

based on competition would be appropriate but a distance

separation for competitive reasons would be

subject to challenge.

Request for a map indicating vendor This can be provided as information to

locations. Members of Committee in advance of both

weeks sales are allowed.

Review of standards relating to safety Not necessary as they are subject to the

of mobile locations. provincial requirements contained in the

Fire Code.

Suggestion that the allowable age of a This is a federal requirement.

person discharging fireworks be raised

above 18.

Concern regarding the lack of protection Municipalities may not provide for

of businesses. preferential treatment for Markham

residents because it would be subject to a

challenge.

Schedule “B”

Issues Raised by Committee on September 10, 2007 and Staff Response:

Issue Staff Response

Prohibiting mobile sales The prohibition of non-Markham businesses

is a restraint of trade and violates federal

and provincial agreements prohibiting anti-

competition practices.

Possible return of unsold fireworks to the Staff are recommending a revision to the By

Distributor rather than the manufacturer Law that fireworks in excess of 25 kilo-

grams gross weight be returned to either the

manufacturer or the distributor as the only

objective is to remove the potential for

improper storage.

City of Toronto regulations The City of Toronto is currently considering

year round sale of family and special event

fireworks by permanent vendors only.

Mobile and temporary sales are not being

included.

Prohibition of non Markham based Such prohibition is a restraint of trade and

businesses violates federal and provincial agreements

prohibiting anti-competition practices.

Reduction in the distance separation The recommended 20 metre separation

between mobile vendor and any road, is more than the minimum separation

occupied parking space and/or required pursuant to the Natural Resources

occupied building. Canada Quantity Distance Tables. The

reduction will permit the trailers to

continue to operate where they been

operating from for years. The Minerals and

Metals Sector of Natural Resource Canada is

the Federal government’s primary source of

scientific and technological knowledge and

policy advice on Canada’s mineral and

metal resources and on explosives

regulation and technology.

Fire extinguishers in mobile trailers Yes, pursuant to the Explosives Act R.S.C.

1985, c.E-17

Sprinklers in mobile trailers No, there is no evidence to justify same.

Include verbiage to allow By-Law The Explosives Act is enforced by a-

Issue Staff Response

Enforcement Officers to enforce federally appointed Chief Inspector of

Federal requirements. Explosives who then may appoint any

additional inspectors and chemists as he or

she considers necessary. Municipal By-Law

Officers do not have the authority to enforce

this Act.

Distinction between various categories This is provided for in the definitions

and size of fireworks section of the proposed by-law.

Question why charitable organizations Based on the attributes of a character

receive a discount when purchasing a community.

permit.

Review of standards relating to safety Not necessary as they are subject to the

of mobile locations. provincial requirements contained in the

Fire Code.

Other York Region municipalities Vaughan, Richmond Hill, Brampton, and

prohibit mobile sales of fireworks. Mississaga do not restrict their non

permanent sales to charitable organizations.

Brampton and Mississauga permit both

mobile and temporary sales and Vaughan

and Richmond Hill permit temporary sales

within buildings.