Chapter 7 FIRE PROTECTION AND PREVENTION

Art. I. In General,  7.1–7.26
Art. II. Volunteers,  7.27–7.42
Art.  III. Reserved,  7.43–7.59
Art. IV. Fire Prevention and Fire Safety,  7.60–7.62
Art. V. Hazardous Substance Spill and Clean Up, 7.80–7.81

ARTICLE I. IN GENERAL

Sec. 7‑1. Department created.

A fire department is hereby created. (Code 1962, 14‑1)

Sec. 7‑2. Composition of department.

The fire department shall consist of a fire chief, such number of paid firefighters as the council may provide, and volunteer firemen. (Code 1962, 14‑2)

Sec. 7‑3. Chief to head department subject to manager.

The fire chief shall be subject to the supervision of the town manager.  The fire chief shall perform such duties as may be set forth in this code or Florida law, the fire chief’s job description, and as directed by the town manager.  (Code 1962, 14‑11; Ord. No. 247, 12, 5‑15‑79; Ord. No. 97-5, 7, 5-6-97)

Sec. 7‑4. Duties of chief generally.

The fire chief shall:

(a)   Have charge of the prevention of fires and the protection of life and property against fire.

(b)   Have charge of the extinguishment of fires and the saving of life and property from fire.

(c)   Have charge of the stationing and activities of the members of the fire department.

(d)   Be responsible for the maintenance and care of all property and equipment owned or in the possession of the fire department.

(e)   Be responsible for the inspection of potential fire hazards and the abatement of existing hazards.

(f)    Make a complete report to the town manager of each fire call answered by the fire department.

(g)      Perform such other and further duties as the town manager shall designate. (Code 1962,  14-12; Ord. No. 247, 13, 5-15-79)

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*Cross references–Civil service for firemen, 2‑201; pension plan for police officers and firefighters, 2‑226 et seq.; alarm systems, 6‑168 et seq.; false alarms or calls for emergency services, 10‑9.

State law references--Assault or battery of firefighter, F.S. 784.07; preventing or obstructing extinguishment of a fire, F.S. 806.10.

Sec. 7‑5. Chief to report to manager.

The fire chief shall make such reports including, among others, reports on the condition of all fire equipment and apparatus owned by the town or in possession of the fire department, as the town manager may require. (Code 1962, 14-35; Ord. No. 247, 17, 5-15-79)

Sec. 7‑6. Control of fire area.

The fire chief or fire department officer in command at a fire which is being extinguished shall have full control of any area in the vicinity of the fire. (Code 1962, 14-41)

Sec. 7‑7. Control of firemen at fire.

The fire chief or fire department officer in command at a fire shall have full control and supervision of all members of the fire department, volunteer or otherwise, during the progress of any fire. (Code 1962, 14-43)

Sec. 7‑8. Police powers of commanding officer at fire.

The fire chief or fire department officer in command at a fire shall have full police powers while actually discharging his duties in the vicinity of the fire. (Code 1962, 14-44)

Sec. 7‑9. Obedience to fire lines.

No person shall approach any closer to any fire than the fire line established by the fire chief or other member of the fire department. (Code 1962, 14-45)

Sec. 7‑10. Command of town and utility employees at fire.

The fire chief or fire department officer in command at a fire shall have control and supervision of all town employees, or employees of utility companies, in the vicinity of any fire during the progress of such fire, for the purpose of enforcing all ordinances, rules and regulations pertaining to the fire, for providing adequate water, and for shutting off electric power to prevent damage from live wires. (Code 1962, 14-42)

Sec. 7‑11. Duty to remove parked vehicle at scene of fire.

When ordered by any member of the fire department, or other person under the control and supervision of the fire chief, in the vicinity of a fire, no person shall fail or refuse to move a parked vehicle owned or operated by him, or under his control. (Code 1962, 14-46)

State law reference–Following, parking near fire apparatus, F.S. 316.2025.

Sec. 7‑12. Damaging, tampering with equipment.

No person shall damage or tamper with any equipment or apparatus owned by or in the possession of the fire department. (Code 1962, 14-34)

Cross references–Trespass or interference with fire department property, 10-19; damaging, misuses of fire alarm signal system, 10‑20.

State law reference–Criminal mischief. F.S. 806.13.

Sec. 7‑13. Maintenance of equipment.

All equipment and apparatus owned by or in the possession of the fire department shall be maintained in such condition that it shall be at all times ready for use in emergencies. (Code 1962, 14-30)

Sec. 7‑14. Private or misuse of equipment.

No equipment or apparatus owned by or in the possession of the fire department shall be used for the personal benefit of any person, or for any other use than that for which it was acquired. (Code 1962, 14-31)

Sec. 7‑15. Use of equipment outside town.

No equipment or apparatus owned by or in the possession of the fire department shall be used for extinguishing fires outside the town limits except in conformity with regulations established by the town council. (Code 1962, 14-32)

Sec. 7‑16. Unauthorized riding on equipment.

No person not a member of the fire department shall ride on any fire equipment or apparatus owned by or in the possession of the fire department, without the fire chief’s permission. (Code 1962, 14-33)

Secs. 7-17–7-26. Reserved.

ARTICLE II. VOLUNTEERS

Sec. 7‑27. Number.

The number of volunteer members of the fire department shall not be limited except as may be provided from time to time under the provisions of section 7-32 of this Code. (Code 1962, 14-19)

Sec. 7‑28. Qualifications.

Any person over the age of eighteen (18) and in good physical condition shall be eligible for membership in the volunteer fire department. (Code 1962, 14-20; Ord. No. 06-11, 1, 7-18-06)

Sec. 7‑29. Appointment; discipline; removal.

Volunteer members of the fire department shall be appointed, disciplined and removed by the fire chief, subject to such rules and regulations with respect thereto as shall be promulgated by the town council. (Code 1962, 14-22; Ord. No. 247, 15, 5-15-79)

Sec. 7‑30. Chief to supervise and control.

The volunteer members of the fire department shall be under the supervision and control of the fire chief. (Code 1962, 14-21)

Sec. 7‑31. Chief to assign duties.

The duties of all volunteer members of the fire department shall be assigned by the fire chief. (Code 1962, 14-23)

Sec. 7‑32. Rules and regulations.

(a) Authorized. The volunteer members of the fire department shall promulgate rules and regulations for the organization and government of the department.

(b) Approval. The rules and amendments thereto shall be submitted to the town council for approval. Such rules and regulations, and any amendments thereto, shall not be deemed effective until approved by the town council. (Code 1962, 14-24; Ord. No. 247, 16, 5-15-79)

Secs. 7-33–7-42. Reserved.

ARTICLE III. RESERVED*

Secs. 7-43–7-59. Reserved.

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*Editor’s note–Art. III, 7-43–7-49, pertaining to pensions for firefighters, has been deleted as being superseded by Ord. No. 89‑15, included herein at Ch. 2, Art. IX, Div. 3, 2-226–2-234, which provides for a combined pension plan for police officers and firefighters. Former Art. III derived from Ord. No. 184, 2-6, adopted Sept. 16, 1975; Ord. No. 278, 1, adopted April 15, 1980 and Ord. No. 83-323, 1, adopted Jan. 3, 1983.

ARTICLE IV. FIRE PREVENTION AND FIRE SAFETY

Sec. 7‑60. Code adopted.

(a) There is hereby adopted by reference and incorporated herein as fully and completely as though set out at length the Florida Fire Prevention Code which includes National Fire Protection Association (NFPA) 1, Uniform Code 2012 edition and the NFPA 101, Life Safety Code 2012 edition, and Chapter 69A, Florida Administrative Code, as adopted by the Florida State Fire Marshal. (Code 1962, 14‑49; Ord. No. 196, 1, 6‑15‑76; Ord. No. 251, 1, 5‑15‑79; Ord. No. 84‑353, 1, 9‑18‑84; Ord. No. 87‑22, 1, 11‑17‑87; Ord. No. 92-12, 1, 7-21-92; Ord. 96-2, 1, 12-19-95; Ord. 10-04, 1, 3-16-10; Ord. 14-02, 1, 12-17-13; Ord. No. 16-05, 1, 3-9-16)

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*Cross reference — Fires prohibited on beach, 5-45.

Sec. 7‑61.  Repealed (Ord. 10-04)

Sec. 7‑62.  Repealed (Ord. 10-04)

Sec. 7‑63. Fire hydrants.

(a) Location requirements. All residential lots shall have a fire hydrant located within five hundred (500) feet and the fire hydrant shall be connected to a water system capable of supplying the fire flow required by the fire officials of the Town of Indialantic. The five hundred (500) feet shall be measured from the intersec­tion of the property boundary line which runs perpendicular to the road or roads which the residential lot borders and the line formed by the right‑of‑way of such road or roads, to the closest hydrant located on the same road or roads.

(b) Residential construction within location requirements. No permit for residential construction required in Chapter 6 of the Code of Ordinances of Indialantic, Florida, shall be authorized by the zoning and planning board without a showing that the residential lot is situated within five hundred (500) feet of a fire hydrant, as required by subsection (a).

(c) Residential construction outside location requirements. Any person or entity requesting a construction permit for residential construction under Chapter 6 of the Code of Ordinances of Indialantic, Florida, which does not meet the requirements of subsection (a) shall be required to submit a plan for installing fire hydrants and necessary connection to the water systems so as to put such construction in compliance with the requirements of subsection (a). All costs of such installation shall be borne by the person or entity requesting the permit. Upon approval of such installation plan, a construction permit may be granted. (Ord. No. 86-3, 1-3, 2-18-86)

Sec. 7-64–7-79.  Reserved

ARTICLE V.  HAZARDOUS SUBSTANCE SPILL AND CLEAN UP

Sec. 7-80.  Definitions.

The following terms when used in this article shall be defined as follows:

(1)  “Facility” shall mean:  (A) any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft; or (B) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located; but does not include any consumer product in consumer use or any vessel.

(2)  “Fire department” shall mean the Indialantic Fire Department.

(3)  “Hazardous substance” shall mean and refer to:  (A) any substance designated pursuant to section 311(b)(2)(A) of the Federal Water Pollution Control Act [33 USC ‘1321(b)(2)(A)]; (B) any element, compound, mixture, solution, or substance designated pursuant to section 102 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”), Public Law No 96-510, 94 Stat. 2767 [42 USC ‘9601, et seq.], and the Superfund Amendments and Reauthorization Act of 1986 (“SARA”), Public Law No. 99-499, 100 Stat. 1613; 8 any hazardous waste having the characteristics identified under or listed pursuant to section 3001 of the Solid Waste Disposal Act [42 USC ‘6921] (but not including any waste regulation under the Solid Waste Disposal Act which has been suspended by Act of the U.S. Congress); (D) any toxic pollutant listed or defined by, or designated pursuant to, section 307(a) of the Federal Water Pollution Control Act [33 USC ‘1317(a)]; (E) any imminently hazardous chemical substance or mixture with respect to which the Administrator of the U.S. Environmental Protection Agency has taken action pursuant to section 7 of the Toxic Substances Act [15 USC ‘2606]; (F) any hazardous substance, material, or waste so defined by, or designated pursuant to, Chapter 403, and in particular, Section 403.703 et seq., Florida Statutes; or (G) petroleum or petroleum product as defined by Section 376.301, Florida Statutes.  Ammunition shall not be included in this definition.

(4)  “Operator” or “Owner” means any person owning or operating a facility, and in the case of bankruptcy, foreclosure, tax delinquency, abandonment, or similar means to a governmental entity, any person who owned, operated, or otherwise controlled activities at such facility beforehand.  Such terms does not include a person, who, without participating in the management of a facility, holds indicia of ownership primarily to protect his security interest in the facility.  In the case of a hazardous substance which has been accepted for transportation by a common carrier or contract carrier, the term “owner” or “operator” shall mean such common carrier or other bona fide for hire carrier acting as an independent contractor during such transportation.  The shipper of such hazardous substance shall not be considered to have caused or contributed to any release during such transportation which resulted solely from circumstances or conditions beyond his control.

(5)  “Person” means and refers to an individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, municipality, county, or governmental entity.

(6)  “Release” means and refers to any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant), but excludes the normal application of fertilizer.

(7)  “Remove” or “removal” means and refers to the cleanup or removal of released hazardous substances from the environment; such actions as may be necessarily taken in the event of the release or the threat of release of hazardous substances into the environment; such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances; the disposal of removed material, or the taking of other actions necessary to prevent, minimize, or mitigate damage to the public health, safety, or welfare of the environment, which may otherwise result from a release or threat of release.

(8)  “Response” or “respond” means remove, removal, remedy, and remedial action, including but not limited to enforcement activities related thereto.

(Ord. 96-3, 2, 11-14-95; Ord. 11-18, 5, 10-18-11)

Sec. 7-81.  Report of hazardous substance releases; liability for clean up.

(a)  Any threatened or actual release of a hazardous substance in:

1)  any reportable quantity in excess of that amount that is listed in Title 40 Code of Federal Regulations, or listed in the Florida Administrative Code; or

2)  any threatened release of any hazardous or toxic substance that is required to be reported to any federal or state agency, shall be immediately and, except as otherwise permitted herein, without delay reported to the fire department upon discovery.  It shall be a violation of this code section to delay in reporting a threatened or actual release until after notifying an off-site owner or supervisor.

(b)  Duty to control release.  The requirements of this section shall not be construed to forbid any person on or about any facility from using all diligence necessary to control such release prior to the notification of the fire department, especially if such efforts may result in the containment of the release or the abatement of extreme hazard to employees or the general public.

(c) Disclaimer of liability.  This section shall not create liability on the part of the town, or any of its departments, officials, employees, or agencies for damages that result from a reliance on this section or any administrative decision lawfully made pursuant hereto.  All persons are advised to determine the level of protection, in addition to that required by this section, necessary or desirable to ensure that there is no unauthorized or dangerous release of hazardous substances.

(d) Liability.  Any persons causing or contributing to the causing of an actual or threatened release of a hazardous substance which results in response or emergency action by the fire department shall be liable to the town for recoverable expenses resulting from the response or emergency action.  This liability shall be in addition to any and all penalties otherwise provided by Federal or state law or other applicable town or county ordinances.

(e) Cleanup responsibility.  Hazardous substances; Cleanup or abatement; Liability for costs.

(1) The fire department or such other governmental agency directed to respond by the fire chief, or his designee, is authorized to cleanup or abate the effects of any hazardous substance unlawfully released upon or onto property, whether public or private, or facilities within the town.  The owner or operator of the facility shall give the town, or its agent, free access to assist in any cleanup.  The following described persons shall be jointly and severally liable to the town for the payment of all costs incurred by the town or its agents as a result of such cleanup or abatement activity:

(A) Any person whose negligent or willful act or omission proximately caused such release;

(B) The person who owned or had custody or control of the hazardous substance at the time of such release, without regard to fault or proximate cause;

(C) The person who owned, operated, or had custody or control of the container or vehicle which held such hazardous substance at the time of or immediately prior to such release, without regard to fault or proximate cause; and

(D) The owner or operator of the facility at which the hazardous substance was released or threatened to be released.

(2) Verification and supervision.  In the event that any person undertakes, either voluntarily or upon the order of the fire chief, or his designee, to cleanup or abate the effects of any hazardous substance unlawfully released upon or onto any property, whether public or private, or facility within the town, the fire chief may take such action as is necessary to supervise or verify the adequacy of the cleanup or abatement.  The persons described in this sub-section shall be liable to the town for all costs and expenses incurred as result of such supervision or verification.

(f) Expenses recoverable.  The Town shall be entitled to recover all of its expenses for responding or taking emergency action, including but not limited to:

(1)  Reasonable and necessary expenses allocable to the emergency action.  Recoverable expenses shall not include normal expenditures that are incurred in the course of providing what are traditionally local services and responsibilities, such as routine fire fighting.  Expenses allowable for recovery may include, but are not limited to:

(A)  Disposable materials and supplies acquired, consumed and expended specifically for the purpose of the response or emergency action;

(B)  Compensation of the employees for the time and efforts devoted specifically to the response or emergency action;

(C)  Rental or leasing of equipment used specifically for the response or emergency action (such as protective equipment or clothing, scientific and technical equipment);

(D)  Replacement costs for equipment owned by the Town that is contaminated beyond reuse or repair, if the equipment was a total loss, and the loss occurred during the emergency action (such as self contained breathing apparatus irretrievably contaminated during the response);

(E)  Decontamination of equipment contaminated during the response or emergency action;

(F)  Special technical services specifically required for the response or emergency action (such as costs associated with the time and efforts of technical experts or specialists not otherwise normally provided by the town);

(G)  Other special services specifically required for the response or emergency action;

(H)  Laboratory costs of analyzing samples taken during the response or emergency action;

(I)  Cost of cleanup, storage, or disposal of the released material;

(J)  Costs associated with the services, supplier, and equipment procured for a specific evaluation;

(K)  Medical expenses incurred as a result of response activities; and

(L)  Legal expenses that may be incurred as a result of the response or emergency action, including efforts to recover expenses pursuant to this article.

(g)          Financial authority.  An emergency purchase order shall be authorized for removal and proper disposal of the hazardous substance in accordance with all applicable regulations of the town, state, and federal governments by a duly licensed private company.  Fire department personnel shall be authorized to contact hazardous substance disposal companies to provide for the expeditious removal of accidental releases.

(h)      Collection of expenses.

(1)  The fire chief shall prepare a report detailing the town’s costs and expenses in responding to a release, or threat of a release, and make demand for the response costs and expenses upon the owner or operator of the facility at which the release, or threat of release of hazardous substances occurred, or the owner of the vehicle from which hazardous substances were released or threatened to be released.  The notice and demand shall also advise the owner or operator of said owner or operator’s right to seek review before the code enforcement board at set forth in sub-section (h)(2) below.  The demand shall be made by personal service by town police officer, county sheriff,  or town code enforcement officer, or alternatively, by certified U.S. mail, return receipt requested, addressed to the owner at the address as shown in the current ad valorem tax rolls or to the operator at the operator’s business address.  The giving of notice and a demand for payment shall be deemed complete when personal service is accomplished or the notice and demand sent by certified mail is deposited in the U.S. mail, postage paid, and the town receives the return receipt card.  If service cannot be obtained in the foregoing manner, service may be obtained by publication as set forth in section 162.12(2)(a), Florida Statutes, and a notice shall be conspicuously posted at the facility at which the release or threat of release occurred.  Said notice shall set forth the name and address of the owner or operator of the facility, a legal description of the facility, detail the costs and expenses for response, describe the purpose and date of the response, make demand for payment of the costs and expenses of the response, and advise the owner or operator of its rights to seek review before the code enforcement board and the procedure for initiating review.

(2)  The owner or operator may seek review of the cost and expenses sought to be compensated for the response as depicted in the notice and demand prepared by the fire chief.  Review shall be before the code enforcement board, and the owner or operator must seek review, if at all, within thirty (30) days of the receipt of the notice and demand for compensation of costs and expenses.  If notice is given by publication, the thirty (30) day time period shall begin to run the day after the last publication of the notice and demand.  A request for review shall be made in writing and filed with the code enforcement board secretary, with a copy to the fire chief, and said notice shall give the telephone number and address at which the owner or operator may be contacted for the purpose of the code enforcement board hearing.

(3)  Upon receipt of a notice from an owner or operator requesting review, the code enforcement board secretary shall schedule a hearing by the board, giving notice of the date, time, place, and purpose of said hearing to the owner or operator by first class U.S. mail, postage prepaid at the address as depicted on the owner or operator’s request for code enforcement board review.  At the hearing, the owner or operator shall have a right to be represented by counsel or an agent, to present evidence and witnesses, and to cross-examine witnesses presented by the town.  The code enforcement board may issue subpoenas through its secretary to command the appearance of witnesses, and said subpoenas shall be served by town police officer, county deputy sheriff, or code enforcement officer.  At the close of the hearing, the code enforcement board shall issue its findings of fact and conclusions of law, together with a final order as to the amount of response costs due from said owner or operator, which final order shall be the town’s position as to the amount due.  The board may also order that the amount determined to be due and owing to the town, if any, shall be returned to the town by a date certain.

(4)  The code enforcement board, as part of its hearing procedure, may impose a lien upon the property at which the release or threatened release occurred.  Said lien shall be for the amount of response costs and expenses and shall bear interest at a rate of eight percent (8%) per annum from the date that the board has ordered payment to be made.  A copy of the final order of the board and the lien shall be forwarded by first class, U.S. mail, postage prepaid to the owner or operator of said facility.  Said lien may be recorded in the public records of Brevard County, Florida.  If the person fails or refuses to pay said costs and expenses within sixty (60) days after the board issues its final order, the Town may proceed with such action as authorized by law to collect said expenses, including reasonable attorney’s fees and costs and interest.  Anyone not satisfied with the code enforcement board decision may file an action in court for the review of said decision pursuant to the Florida Rules of Appellate Procedure.

(5)  If the owner or operator does not seek a hearing before the code enforcement board within thirty (30) days of the receipt of the notice and demand for compensation of costs and expenses, the fire chief may request that the code enforcement board issue a lien in the amount of the notice and demand for response costs, as set forth in sub-section (h)(4) above.  The owner and operator of the facility or the vehicle owner shall be notified of said hearing in the manner set forth in sub-section (h)(2) above.  The town and the owner or operator of the facility may appear at the code enforcement board hearing to be held according the parties the same rights as set forth in sub-section (h)(3).  The sole issue shall be the propriety of placing a lien on the facility for compensation of the costs and expenses of the response.  Anyone not satisfied with the code enforcement board decision may file an action in court for the review of said decision pursuant to the Florida Rules of Appellate Procedure.

(I)     The code enforcement board may upon request by the town council or any person creating a release of a hazardous substance, investigate a hazardous incident in order to make certain findings or recommendations concerning:

(1)      The cause of the incident;

(2)      Methods to improve safety; or

(3)      Other findings concerning the incident.

(j)      Civil suit.  The town may bring a civil action for recovery of recoverable expenses and penalties against any and all persons causing or responsible for the a response or emergency action relating to the release or threat of release of a hazardous substance

(k)      Written report.  A full written report shall be prepared by the person having a release of a hazardous substance within fifteen (15) days after said release.  The report shall include:

(1)      Date and time of release;

(2)      When and who reported release;

(3)      The nature, quantity and amount of release;

(4)      Actions taken to control the release;

(5)     The present condition of the release, including ground, air, and water pollution;

(6)      Future actions to be taken concerning the release; and

(7)      Injuries to persons or property of the environment.

Said report shall be filed within the above stated time with the town fire chief.

(l)      Continuing responsibility.  Notwithstanding any provision of this article to the contrary, the owner or operator of any facility at which a hazardous substance has been released or at which there has been a threat of a release shall remain liable and responsible for its management, cleanup, and removal as authorized by law, and said responsibility shall be a continuing responsibility until proper disposition and removal.

(m)  Violations.  Violations of provisions of this article, excluding the failure to pay response costs and expenses for a release or threatened release, shall be punishable as specified in section 1-9, town code, or may be prosecuted as code enforcement violation pursuant to Chapter 162, Florida Statutes, and section 2-5, town code.

(n)  Limited preemption.  Nothing in this section 8-81 is intended to regulate matters specifically preempted by 790.33, Florida Statutes.

(Ord. 96-3, 3, 11-14-95; Ord. 11-18, 6, 10-18-11)