Travis County Commissioners Court
Tuesday, June 7, 2011 (Agenda)
Item 4
Number 4 is revised language, consider and take appropriate action regarding the regulation of fireworks in the unincorporated area of Travis County.
we indicate it may be taken into executive question.
I do have several legal questions that -- so we'll take it into executive session when we take the other items in there.
but there is open court discussion.
>> the July 4th season is upon us.
the season dates normally fireworks would be available June 24 through July 4th.
the county has authority to restrict some fireworks and that is the rockets with sticks and missiles with fins.
that can be done with the drought index is above 575.
if that action is taken prior to June 15th.
there is one more voting session prior to that deadline.
I've provided to you late but a report that we compiled in our office about whether fireworks and information particular to Texas and even more particular to Travis County.
and this data comes from Texas forest service, from the Texas fire incident reporting system and from the office and fire department communications center.
and gleaning through that, you will see that when consumers have fireworks in their hands, the numbers of fires in unincorporated Travis County go up.
and it's -- it generally peaks on the last 24 to 30 hours of any one given fireworks season.
even when the drought index is less than 100, we still will have outdoor fires.
some of the -- Travis County on average through the year has from two to three outdoor fires per day.
and then that number will increase when the fireworks are available.
some of the factors that affect these fires, I believe, are the fact fireworks are available to consumers.
the retail stands, there's not been a problem with fires in and around those stands.
in the history of Travis County since there's been a fire marshal's office, there's only been one small fire in a stand and that did not do a significant amount of damage.
so the fact that fireworks are available, what the drought index is, whether or not the wind blows and the relative humidity are the factors that directly affect the number of fires in our area.
I'll be glad to answer any questions you have about the report that I have there.
the -- we have received a number of emails, calls about fireworks, are they going to be available and why aren't they -- why don't we just outlaw them completely because there is a burn ban.
state law for a burn ban does not prohibit fireworks.
a section of local government code allows the prohibition of certain fireworks.
and further restriction of fireworks is subject to a local disaster declaration.
so -- and I've tried to explain that to people, but people are concerned.
>> let me ask this question then because, you know, I guess as far as looking at the drought and looking at through the state of Texas, looking at the drought that we're experiencing here, does the governor -- and I want to lay it out, does the governor play a role in declaring, I guess, what we believe to be disaster situations in certain counties in the state that are experiencing severe drought?
now, does that have to come from the governor?
in other words, an example, the governor said this particular area I'm considering as a disaster area, per se, and under these conditions you can't do certain things, certain guidelines.
and if that is the case, then could each individual county prohibit fireworks entirely?
not the ones that are missiles with fins and the other bottle rockets, in other words, just prohibition of those type, but the whole nine yards as may be possible.
but under what condition would a county be able to declare a ban on all fireworks since we are going through such a drought situation or is that possible?
or does it have to come from the governor?
how does it work.
>> I believe I can answer that but I would prefer mr. Connally would.
>> I'm just asking anybody, giving it out.
mr. Connally.
>> the governor has declared a state of disaster for the state of Texas.
most counties in the state of Texas due to wildfire and drought.
counties do have some authority to ban all fireworks, sale and use through the use of a local disaster declaration.
but if a county bans all fireworks through the use of a disaster declaration, that prohibition cannot last beyond 60 hours without the consent of the governor.
so if the -- if a county chooses to ban all fireworks, that prohibition can last up to 60 hours.
you would have to request from the governor that the governor's office extend the ban.
and we are seeing some counties, some counties have already acted to issue disaster declarations, and the governor's office has indicated that they encourage counties that are going to do this to act early because they expect to get a lot of these, and they will handle them on a case-by-case basis and look at these requests to extend fireworks bans beyond the 60 hours.
>> thank you for that analysis, but in regard to an earlier answer that as far as June 15th, for an example, June 15th being the deadline that we have to enact to prohibit certain types of fireworks such as missiles with fins and bottle rockets, we have to do that before June 15th.
if we fail to do that, of course the prohibition is not enforced.
secondly, if -- is there a time line whereby under a declaration under the 60-hour window that we're talking about and we need the governor of the state of Texas to sign this particular declaration, then what would be -- the question is what would be the time line on when this court needs to act and also the actions of the governor to all come into concert with -- I'm looking at that June 15th, or is the June 15th ban on those other deals that we acted on in item 3, for an example, is not applicable?
because I don't want to get apples and oranges mixed up here.
in other words, it's one or the other, but then it takes care of all of them if I know what the deadline is on the second in item 4.
>> yeah, well, it really is, Commissioner, two different statutory provisions.
the one with the June 15th deadline in the local government code which only allows you to prohibit what they call restricted fireworks, and that's really a very limited class of fireworks, missiles with fins and stick rockets, if you are going to take action under that statute to prohibit the sale or use of those fireworks, you have to do that by June 15th.
there is no time deadline for the disaster declaration.
>> for the local disaster --
>> for the declaration of local disaster pursuant to which you can ban the sale or use of all fireworks.
there is no time deadline for the -- for the court to action.
and actually there's a role both for the county judge and for the Commissioners to play with regard to declaration of local disaster.
the law says that the county judge can initially issue the declaration in local disaster but it cannot extend beyond seven days except with the approval and consent of governing body and in this case, of course, it would be the Commissioners court.
so the county judge could initially issue a disaster declaration, a local disaster declaration banning the sale or use of fireworks, and the Commissioners court if it goes beyond seven days would have to approve that.
also if it includes prohibitions against sale or use of any fireworks, then it has to be approved by the governor to go beyond 60 hours.
at least that portion of it that deals with fireworks prohibition.
>> well, currently we have -- we have acted enforcement or prohibition type situation whereby an example in the park.
in our parks we look at the situation where we make sure that those particular barbecue pits and things like that are covered and notice and all these things.
I think the city of Austin have done the same thing in its parks because of the severe drought situation.
and there has been no improvement.
I mean there has been no improvement in the drought status of Travis County.
it just appears to me we need to head in this direction.
thank you.
>> yes, the -- I have met twice in the last ten days with a representative of the fireworks industry, mr. Chester Davis represents american fireworks.
he's the owner.
and the president of one of the pryotechnic associations.
but he has met with the other vendors in Travis County and is making an offer of reducing the fireworks selling season to four days, July 1st through the 4th.
and voluntarily removing those restricted fireworks.
regardless of whether the court were to take action to restrict that, he is making that as an offer not only to Travis County but to all of our neighboring counties.
so that if fireworks are available in any of those counties, that those restricted fireworks would not be brought back into Travis County.
>> what day of the week is July 4th on?
>> it's a Monday.
>> so we would have an entire weekend of incendiary devices going off in dry fuels all over the county.
it's worth remarking that the fireworks lobby has successfully prevented almost every effective regulatory mechanism for counties to protect our citizens from fire even in extreme drought conditions.
just amazing that a burn ban doesn't affect fireworks unless we say it does, and then only send fireworks, and then we would have to have a local declaration, and then the local declaration as it pertains to fireworks would expire after 60 hours unless the governor approves.
it is remarkable how powerful the fireworks lobby is.
not to mention their efforts to scuttle emergency service districts' attempts to professionalize and collaborate so as to respond to these kinds of fires.
it is truly remarkable the strength of this lobby.
and I want to credit mr. Chester Davis for at least attempting negotiations with the county, because frankly he doesn't have to.
>> Commissioner Huber?
>> ditto.
and I think we should make every effort we can to document any fires this year that result out of fireworks because -- and make a big deal out of that because I have no doubt that's going to happen whether legally or illegally.
but I did have a couple questions.
do we know if the governor has given any extensions on any local disaster declarations already?
>> I don't know if that's happened yet.
I do know, I just was doing a google search and also searching the governor's website and the division of emergency management this morning.
I didn't find any indication of any having already been extended.
I do see that some counties have already taken action to declare local disasters and have already forwarded the request to the governor to extend their total bans on fireworks beyond July 4th.
I haven't seen there's been any action.
I did see that the governor's office in 2008 or -- yeah, 2008 under this same statutory scheme, bexar county had issued a declaration of local disaster and requested from the governor that it be extended beyond 60 hours and the governor's who was did do that.
so they have -- there is some --
>> what is the time extension that's given, for example, by the governor?
is it a time extension?
what is the end of an extension?
>> you know, looking at various ones that I looked at this morning, I just saw a handful on the -- and it doesn't seem that there's one-one way that it's been dealt with.
some people have requested, some counties have requested that the governor extend it to July the 5th, for instance, or until drought conditions no longer exist.
I can't recall what that one that they issued, when the governor extended it in bexar county, I can't recall what language they used when it would actually expire, but mostly counties are asking that the governor extend it beyond the July 4th fireworks season.
>> in the same vein, if we were to declare a local disaster, what kind of time frame would that encompass?
what is the end of such a local declaration.
do we articulate that in terms of drought index or something like that?
>> I that -- and we've done this above.
I think that the local disaster declaration, as I recall, expire when the doubt conditions no longer exist.
>> that's correct.
>> that's the way I recall it.
>> well, I would just like to say, I mean we've just had fairly recently the oak hill fire, and we still have in the cleanup stages a major fire of over 200 acres in western Travis County.
that fire actually burned up to within a threatening distance of a subdivision.
I think that the time has come to get active, very active in any way we can to deal with this, whether this is a local disaster declaration, pushing the limits on the interpretation of whatever laws are out there.
in my not so humble, not to educated legal opinion, a fire work is a fire.
and if we have a burn ban, they ought to be banned.
so we need to I really believe for the safety of our county, we really need to get active on this.
>> and to the extent that our authority isn't there, I would also ask those who are watching, please do not purchase or choose fireworks during this fireworks season.
just don't purchase them.
I'm asking you voluntarily don't engage in fireworks during this very, very serious drought.
not only because we're in a serious brought and it might cause a possibly fatal fire, but also frankly because of the irresponsible position of the fireworks industry.
>> just to give an example of how -- how high a risk this is, a firework is a burning item.
the preliminary indications on a 200-acre fire in western Travis County was it was started by an electrical line without insulation that just touched the flammable material.
I think that's a pretty close parallel to an indication of how flammable the situation is when it relates to fireworks.
>> Commissioner Davis.
>> yes, judge, I know earlier in the conversation, in the discussion, rather, I know you said that you probably have some legal questions, and I guess you would like to -- this go to executive session, but I'm really leaning, just to let you know where I'm coming from, but I believe we should declare a local disaster declaration and hopefully that this will go before the governor in a timely matter so we can get beyond the 60-hour time line and hopefully the governor will sign off on it and allow us to prohibit the use of all fireworks here in Travis County.
I know that you've got some legal questions and I can wait until later on.
>> but I think whatever action we take we ought to wait until next week or later.
>> pardon me?
>> I think we ought to wait until next week or later to take action.
one thing I promised mr. Davis we wouldn't act before the 14th because he's at Williamson county today before the Commissioners court down there.
>> I understand.
>> but I do have five or six legal questions.
>> judge, if I might add to direct this to the concern of Commissioner Huber,'s every year when we are at the capitol trying to defend the county's authority, we hear people say there is no data which proves that fireworks causes fires.
if you look through here, you will see most of these fires are happening within a 30-hour time period, and in one case in Travis County alone, there were 400 fires.
now, I have a staff of seven, and there are about four other investigators in Travis County.
we can't hope to look at all of the fires that happen in that concentrated period of time.
and with the new rules of nfpa 921, if you can't say the fireworks started the fire, then you've got to call it undetermined.
an example is recently I stopped on the side of a road for a fire that was no bigger than this table.
the fire trucks weren't there.
I put the fire out.
well, in that fire area there were about 100 cigarette butts, a piece of hot metal and an old firework.
that's an undetermined fire.
and throughout the data, the greatest cause of fires in Texas is listed as undetermined.
because there are in this case as in most fires, there are multiple possibilities.
and it's impossible to rule that out.
but if you look at all the data collectively, you see that the fires increase when consumers have fireworks.
>> and --
>> that's a control factor.
>> pull out the document.
anybody who wants to check it out, look at herschel's back you-up.
peak fire time is fourth of July and new year's eve.
I mean it just doesn't take a rocket scientist to figure out what's causing those fires, it's new year's eve and fourth of July.
>> and the situation is so severe and you mentioned those other characteristics that produce fire problems, but also just parking your vehicle on the side of the road in grass.
those, in fact I think the city has started ticketing people that's parked on the grass in certain areas in parks and things of that nature.
I think they started giving them tickets, park police.
so it's that critical that we need to do something that we have some type of control over in my mind.
and, of course, we're going through a severe drought and we need --
>> you are correct, we're in a severe drought time.
I drove by a place on highway 21 last week and there were seven fires down the side of the road.
and talking to the deputies it was someone dragging a chain.
so anything that causes sparks, when you have a low relative humidity and the lack of moisture that we currently are experiencing can cause a fire.
>> we will take item 4 into executive session for discussion with our lawyers.
that will be either late this morning or this afternoon.
>> thank you very much.
>> the other question too is if we want to declare -- if we want some sort of declaration, shouldn't we post that specifically?
we can get the answer to that question this afternoon too.
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