Introduction

            A question about the City�s ability to regulate metallic or electrically conductive balloons (sometimes referred to as Mylar� balloons) in Burbank was raised at a recent council meeting.  This report is for the purpose of Step One in the council�s �One step � Two step� process.   The following is a summary of the City�s current ordinance and state regulations relating to these types of balloons.  

State and City Regulations

            California Penal Code � 653.1 prohibits the sale or distribution of balloons constructed of electrically conductive material and filled with a gas lighter than air (Mylar balloons) without: (1) affixing a weight to the balloon to counter its lift, (2) affixing a statement to the balloon that warns the consumer about the risk if the balloon comes into contact with electrical power lines, and (3) a printed identification of the balloon�s manufacturer.  

             Burbank Municipal Code � 17-901 requires businesses that offer metallic balloons for sale to post signs warning that the balloons conduct electricity and should not be used or released near sources of electric power, including transmission lines. [1] 

Preemption

            An obvious question is to what extent the City can further regulate the sales or uses of these types of balloons.  The general rule of thumb in California is that a charter city has broad discretion to exercise its police powers for the protection of the health, safety and welfare of its inhabitants.  This police power is given wide deference by the Courts.  The courts will only interfere with the legislature�s exercise of its police power where it is preempted; or where the action was clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare. (Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 604 ; Guinnane v. San Francisco City Planning Com. (1989) 209 Cal.App.3d 732, 740-741.) Local legislation will be seen as preempted by state law where it �duplicates, contradicts, or enters an area fully occupied by general law, either expressly or impliedly.� Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 897. 

            Should the Council wish to consider other regulations relating to sale or use of metallic balloons in Burbank, staff will need to conduct further research to determine whether or not there are legal impediments to such further regulation including state or federal preemption, or other legal prohibitions.  Staff will also need to develop an adequate factual record to support the need for further regulation as it substantially relates to the public health, safety or general welfare, and enforcement options.

Recommendation

            Council should direct staff as it deems appropriate.

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