COMMITTEE SUBSTITUTE
FOR
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 175
(By Senator McCabe)
____________
[Originating in the Committee on Finance;
reported February 26, 2010.]
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A BILL to repeal §29-3-23, §29-3-24 and §29-3-25 of the Code of
West Virginia, 1931, as amended; to amend and reenact §11-12-
86 of said code; to amend and reenact §29-3-26 of said code;
and to amend said code by adding thereto a new article,
designated §29-3E-1, §29-3E-2, §29-3E-3, §29-3E-4, §29-3E-5,
§29-3E-6, §29-3E-7, §29-3E-8, §29-3E-9, §29-3E-10, §29-3E-11,
§29-3E-12, §29-3E-13, §29-3E-14, §29-3E-15, §29-3E-16, §29-3E-
17 and §29-3E-18, all relating generally to revising,
consolidating and codifying the laws relating to fireworks;
providing definitions; regulating purchase, possession,
transportation, sale and use of fireworks; providing no local
government regulation over consumer fireworks; requiring
certification, registration, bonding and permits; providing for civil money penalties, criminal penalties and remedies;
establishing Fireworks Safety Fund and safety fee and
providing for the dispensation of the fund; prescribing powers
and duties of certain state agencies; providing the Fire
Marshal with rule-making and emergency rule-making powers; and
requesting the Fire Marshal create and maintain an internet
website.
Be it enacted by the Legislature of West Virginia:
That §29-3-23, §29-3-24 and §29-3-25 of the Code of West
Virginia, 1931, as amended, be repealed; that §11-12-86 of said
code be amended and reenacted; that §29-3-26 of said code be
amended and reenacted; and that said code be amended by adding
thereto a new article, designated §29-3E-1, §29-3E-2, §29-3E-3,
§29-3E-4, §29-3E-5, §29-3E-6, §29-3E-7, §29-3E-8, §29-3E-9,
§29-3E-10, §29-3E-11, §29-3E-12, §29-3E-13, §29-3E-14, §29-3E-15,
§29-3E-16, §29-3E-17 and §29-3E-18, all to read as follows:
ARTICLE 12. BUSINESS REGISTRATION TAX.
§11-12-86. Sparkler and novelty registration fee.
The tax commissioner shall establish an annual "Sparkler and
Novelty Registration Fee" which shall be charged all businesses
licensed to do business in the state of West Virginia desiring to
sell sparklers and novelties authorized for sale in section
twenty-three six, article three three-c, chapter twenty-nine of
this code. This fee shall run concurrent with the business registration certificate set forth in section five of this article.
This fee shall not be prorated. Each business shall pay fifteen
dollars for each registration and shall be issued a sticker or card
by the tax commissioner to be posted in a conspicuous position at
the location of the business which has paid the registration fee.
This fee shall be collected for each separate location where
sparklers and novelties are sold. The tax commissioner may, in his
discretion, require a separate certificate which shall be posted as
set forth herein, or provide that the evidence of compliance with
this section may be by a stamp or language added to the business
registration certificate or by embossing or writing imprinted on
the business registration certificate.
ARTICLE 3. FIRE PREVENTION AND CONTROL ACT.
§29-3-26. Seizures by fire marshal; enforcement of law.
The state fire marshal shall seize, take, remove and destroy,
or cause to be seized, taken or removed and destroyed, at the
expense of the owner, all stocks of fireworks or combustibles
offered or exposed for sale, stored or held in violation of this
article or article three-e of this chapter. It shall be the duty of
the department of public safety, sheriffs, municipal policemen and
other law-enforcement officers to assist in the enforcement of this
article.
ARTICLE 3E. FIREWORKS SAFETY.
§29-3E-1. Short title.
This act is known and may be cited as the "West Virginia
Fireworks Safety Act".
§29-3E-2. Definitions.
As used in this article:
(1) "Agricultural and wildlife fireworks" means fireworks
devices distributed to farmers, ranchers, and growers through a
wildlife management program administered by the United States
Department of the Interior or the Department of Natural Resources
of this state.
(2) "APA Standard 87-1" means the 2001 APA Standard 87-1
published by the American Pyrotechnics Association of Bethesda,
Maryland, as amended, and incorporated by reference into Title 49
of the Code of Federal Regulations.
(3) "Articles pyrotechnic" means pyrotechnic devices for
professional use that are similar to consumer fireworks in chemical
composition and construction but not intended for consumer use,
that meet the weight limits for consumer fireworks but are not
labeled as such, and that are classified as UN0431 or UN0432 under
49 CFR 172.101, as in effect January 1, 2010.
(4) "Consumer fireworks" means small fireworks devices other
than low-grade fireworks that are designed to produce visible
effects by combustion and that are required to comply with the
construction, chemical composition and labeling regulations
promulgated by the United States Consumer Product Safety Commission under 16 CFR parts 1500 and 1507, as in effect on January 1, 2010,
and that are listed in APA Standard 87-1. Consumer fireworks
include devices classified as fireworks UN0336 under 49 CFR
172.101, as in effect on January 1, 2010, except for fused set
pieces containing components that together exceed fifty milligrams
of salute powder.
(5) "Consumer fireworks certificate" is a certificate issued
under section five of this article.
(6) "Consumer fireworks retail sales facility" means a
permanent or temporary building or structure, stand, tent, canopy,
or membrane that is used primarily for the retail display and sale
of consumer fireworks.
(7) "Display fireworks" means large fireworks to be used
solely by professional pyrotechnicians licensed by the State Fire
Marshal and designed primarily to produce visible or audible
effects by combustion, deflagration or detonation and includes, but
is not limited to, salutes containing more than two grains (one
hundred thirty milligrams) of explosive materials, aerial shells
containing more than forty grams of pyrotechnic compositions and
other display pieces that exceed the limits of explosive materials
for classification as consumer fireworks and are classified as
fireworks UN0333, UN0334, or UN0335 under 49 CFR 172.101, as in
effect on January 1, 2010, and including fused set pieces
containing components that exceed fifty milligrams of salute powder.
(8) "Distributor" means a person who sells fireworks to
wholesalers and retailers for resale.
(9) "Explosive composition" means a chemical or mixture of
chemicals that produces an audible effect by deflagration or
detonation when ignited.
(10) "Fire Marshal" means the State Fire Marshal appointed
pursuant to article three of this chapter.
(11) "Firework" or "fireworks" means any composition or device
designed for the purpose of producing a visible or audible effect
by combustion, deflagration or detonation. Fireworks consist of
consumer fireworks, articles pyrotechnic, display fireworks and
special effects but does not include low-grade fireworks.
(12) "Interstate wholesaler" means a person who is engaged in
interstate commerce selling fireworks.
(13) "Local unit of government" means a county commission, as
described in article one, chapter seven of this code, a
consolidated local government, as defined in article one, chapter
seven-a of this code, or a municipal corporation, as defined in
article one, chapter eight of this code.
(14) "Low-grade fireworks" means one or more of the following:
(A) Ground and handheld sparkling devices as that phrase is
defined under APA standard 87-1 3.1, as in effect on January 1,
2010;
(B) Novelties as defined under APA standard 87-1 3.2, as in
effect on January 1, 2010; and
(C) Toy Caps as defined under APA standard 87-1 3.3, as in
effect on January 1, 2010.
(15) "Manufacturer" means a person engaged in the manufacture
of fireworks.
(16) "Permanent building or structure" is a building or
structure that is affixed to a foundation on a site and that has
fixed utility connections and that is intended to remain on the
site for more than one hundred eighty consecutive calendar days.
(17) "Person" means an individual, an association, an
organization, a partnership, a limited partnership, a limited
liability company, a corporation, or any other group of combination
acting as a unit.
(18) "Pyrotechnic composition" means a mixture of chemicals
that produces a visible or audible effect by combustion rather than
deflagration or detonation. A pyrotechnic composition will not
explode upon ignition unless severely confined.
(19) "Retailer" means a person who purchases consumer
fireworks for resale to consumers.
(20) "Special effects" means a combination of chemical
elements or chemical compounds capable of burning independently of
the oxygen of the atmosphere and designed and intended to produce
an audible, visual, mechanical, or thermal effect as an integral part of a motion picture, radio, television, theatrical, or opera
production or live entertainment.
(21) "Temporary consumer fireworks retail sales facility"
means a building or structure other than a permanent building or
structure that has electrical power and wiring for an electrical
service in use or in place for a period of ninety consecutive
calendar days or less for the retail sale of consumer fireworks.
(22) "Wholesaler" means any person who sells consumer
fireworks to a retailer or any other person for resale and any
person who sells articles of pyrotechnics, display fireworks, and
special effects to a person licensed to possess and use those
devices.
§29-3E-3. Permitted uses of fireworks.
Except as otherwise provided in this article, this article
does not prohibit any of the following:
(1) A wholesaler, retailer, manufacturer, importer, or
distributor from the sale, storage, use, transportation, or
distribution of consumer fireworks;
(2) The use of fireworks by railroads or other transportation
agencies for signal purposes or illumination;
(3) The use of agricultural or wildlife fireworks;
(4) The sale or use of blank cartridges for a show or play,
use by military organizations or signal or ceremonial purposes in
athletics or sports;
(5) The possession, sale, or disposal of fireworks incidental
to the public display of fireworks by wholesalers or other persons
who have a permit to possess, store, and sell explosives from the
Bureau of Alcohol, Tobacco, Firearms, and Explosives of the United
States Department of Justice and the State Fire Marshal; or
(6) Interstate wholesalers from the sale, storage, use,
transportation, or distribution of fireworks.
§29-3E-4. Local governments not to regulate consumer fireworks.
(a) No local regulation. -- Notwithstanding any provision of
this code to the contrary, a local unit of government may not
impose, enact, or enforce an ordinance or regulation pertaining to
or in any manner regulating the sale, storage, transportation or
distribution of consumer fireworks under this article.
(b) Resolution of conflict. -- Any municipal ordinance or
county order that is in conflict with this article is preempted to
the extent it is inconsistent with or in conflict with this
article.
§29-3E-5. Consumer fireworks certificate required; registration
fee; misdemeanor penalty
.
(a) Certificate required. -- A retailer may not sell consumer
fireworks unless the retailer annually obtains and maintains a
valid consumer fireworks certificate from the fire marshal for each
location from which consumer fireworks are to be sold as provided
in this section. A retailer that has a valid consumers fireworks certificate and who has paid the annual sparkler and novelty
registration fee imposed by section eighty-six, article twelve,
chapter eleven of this code, may sell sparklers and novelties at
the same location.
(b) Application for certificate. -- An application for a
consumer fireworks certificate under this section shall meet all of
the following requirements:
(1) The application shall be submitted no later than March 1
of each year in which consumer fireworks are to be sold.
(2) The application must list the name and address of each
location from which consumer fireworks are to be sold.
(3) The applicant shall attach to the application a copy of
its business registration certificate issued under article twelve,
chapter eleven of this code, for each location from which it
intends to sell consumer fireworks.
(4) The applicant shall provide all other information or
documentation required by application prescribed by the State Fire
Marshal.
(5) The application shall include a registration fee of $500
for each consumer fireworks retail sales facility location from
which consumer fireworks will be sold.
(c) Processing of application. -- Not more than fifteen
business days after an application is received by the fire marshal
under this section, the fire marshal shall issue or deny issuance of a consumer fireworks certificate to the retailer and, if denied,
shall indicate to the applicant in writing the reason for the
denial. The fire marshal may not unreasonably delay or deny an
application under this section.
(d) Amended application. -- If the fire marshal denies
issuance of a consumer fireworks certificate under this section,
the applicant may cure any defect in the application within twenty
days after receipt of the written denial without paying an
additional registration fee. An amended or corrected application
shall be processed as provided in subsection (C)of this section.
(e) Certificates not transferable. -- A consumer fireworks
certificate is not transferable, except with the written consent of
the fire marshal to a subsequent owner or operator of a business at
the same location provided the transferee is eligible to hold a
certificate under this article.
(f) Prohibition on sales from unauthorized location. -- A
retailer may not sell consumer fireworks at a location for which a
consumer fireworks certificate has not been issued to that
retailer.
(g) Criminal penalty. -- A retailer who violates subsection
(a) or (f) of this section is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than $500 nor more than
$1,000 for each violation.
§29-3E-6. Sales of consumer fireworks or low-grade fireworks.
(a) Criteria for permanent facilities. --
Consumer fireworks may be sold by retailers only from a
permanent consumer fireworks retail sales facility that complies
with the following criteria:
(1) A consumer fireworks retail sales facility must be
dedicated solely to the sale of consumer fireworks and related
items.
(2) A consumer fireworks retail sales facility must comply
with the requirements set out in this article and with the
requirements of NFPA 1124, as in effect on January 1, 2010, as such
are not in conflict with the provisions of this article.
(3) A consumer fireworks retail sales facility may not be less
than sixty feet from another permanent building and not less than
three hundred feet from a structure selling or dispensing gasoline,
propane or other flammable material.
(4) A consumer fireworks retail sales facility shall be
located a minimum of three hundred feet from another consumer
fireworks retail sales facility.
(5) A consumer fireworks retail sales facility shall be
equipped with monitored fire and intrusion alarm systems in
compliance with NFPA 72.
(6) The retail sales area of a consumer fireworks retail sales
facility to which the public may be admitted is limited to ten
thousand square feet and shall be of single-story, noncombustible construction.
(7) Any storage area attached to a retail sales area of a
consumer fireworks retail sales facility shall be separated from
the retail sales area by a two-hour rated fire wall.
(8) A consumer fireworks retail sales facility shall be
equipped with a fire sprinkler system regardless of the size of the
consumer fireworks retail sales facility and installed in
compliance with NFPA 13.
(9) A consumer fireworks retail sales facility shall be
equipped with a smoke ventilation system.
(10) Aisles in a consumer fireworks retail sales facility
shall have minimum widths of sixty inches.
(11) A consumer fireworks retail sales facility shall maintain
public liability and product liability insurance with minimum
coverage limits of $2 million.
(12) A consumer fireworks retail sales facility shall be
equipped with a minimum of three exit doors and shall have one exit
door for every twenty-five people permitted in the facility under
the occupant load calculation.
(13) Minors are not permitted in a consumer fireworks retail
sales facility unless accompanied by a parent or guardian.
(14) Minors are not permitted to ride in strollers or shopping
carts in a consumer fireworks retail sales facility.
(15) Interior finish shall be either Class A or Class B as defined by the National Fire Protection Association, Standard 101.
(16) All new and altered consumer fireworks retail sales
facilities shall submit to the State Fire Marshal for review of all
architectural, fire alarm, sprinkler and other related plans prior
to occupancy.
(b) Criteria for temporary facilities. -- Consumer fireworks
may be sold from a temporary consumer fireworks retail sales
facility or store that complies with the following criteria:
(1) A temporary consumer fireworks retail sales facility may
not be less than sixty feet from a permanent building or structure,
not less than five hundred feet from a permanent building for which
a certificate has been issued by the fire marshal to sell consumer
fireworks, and not less than five hundred feet from another
temporary consumer fireworks retail sales facility.
(2) A temporary consumer fireworks retail sales facility may
have no vehicle parked closer to it than twenty feet, except when
delivering, loading or consumer fireworks or related items used,
stored or displayed in the facility.
(3) A temporary consumer fireworks retail sales facility may
not be less than three hundred feet from a structure selling or
dispensing gasoline, propane or other flammable material.
(4) If the temporary consumer fireworks retail sales facility
is a tent, the tent material shall be made of flame-retardant
material.
(5) A temporary consumer fireworks retail sales facility is
limited to seasonal sales of consumer fireworks for a period of not
more than forty-five days in any calendar year.
(c) Low-grade fireworks, sparklers and novelties shall not be
considered fireworks and require a business registration fee be
paid to be authorized to sell, as provided for in section eighty-
six, article twelve, chapter eleven of this code. Low-grade
fireworks include the following:
(1) Explosive caps designed to be fired in toy pistols,
provided that the explosive mixture of the caps shall not exceed
twenty-five hundredths of a grain for each cap.
(2) Snake and glow worms composed of pressed pellets of a
pyrotechnic mixture that produce a large snake-like ash when
burning.
(3) Smoke devices consisting of a tube or sphere containing a
pyrotechnic mixture that produces white or colored smoke.
(4) Trick noisemakers which produce a small report designed to
surprise the user and which include:
(A) A party popper, which is a small plastic or paper item
containing not in excess of twenty-five hundredths of a grain of
explosive mixture. A string protruding from the device is pulled
to activate the device, expelling paper streamers and producing a
small report.
(B) A string popper which is a small tube containing not in excess of twenty-five hundredths of a grain of explosive mixture
with string protruding from both ends. The strings are pulled to
activate the friction-sensitive mixture, producing a small report.
(C) A snapper or drop pop, which is a small paper wrapped item
containing no more than twenty-five hundredths of a grain of
explosive mixture coated on small bits of sand. When dropped, the
device produces a small report.
(5) Wire sparklers consisting of wire or stick coated with
nonexplosive pyrotechnic mixture that produces a shower of sparks
upon ignition. These items must not exceed one hundred grams of
mixture per item.
(6) Other sparkling devices which emit showers of sparks and
sometimes a whistling or crackling effect when burning, do not
detonate or explode, are hand-held or ground-based, cannot propel
themselves through the air and contain not more than seventy-five
grams of chemical compound per tube or not more than a total of two
hundred grams if multiple tubes are used: Provided, That sparklers
and sparkler devices as provided for herein shall not be sold to
anyone below the age of sixteen years old.
(d) Compliance by retailers. -- Retailers who sell consumer
fireworks shall comply with the following criteria:
(1) There shall be at least one uniformed security person on
duty during business hours at a consumer fireworks retail sales
facility and a temporary consumer fireworks retail sales facility for seven days prior to and including July 4, of each year.
(2) All consumer fireworks sold in West Virginia must meet the
minimum standards of the U.S. Consumer Product Safety Commission
and must be certified or tested by a recognized third-party testing
agency.
(3) No cigarettes, tobacco products, lighters, or other flame
producing devices are permitted in a consumer fireworks retail
sales facility, temporary consumer fireworks retail sales facility
or a store where consumer fireworks are sold. Smoking is not
permitted in or within fifty feet of any such sales facility.
(4) An individual must be at least eighteen years of age to
work in a consumer fireworks retail sales facility or temporary
consumer fireworks retail sales facility or to be able to purchase
consumer fireworks.
(5) No individual who has been convicted of or pled guilty to
a felony may hold any interest in or work in any business licensed
in this state to sell consumer fireworks.
(6) At least one management level employee of a consumer
fireworks retail sales facility and a temporary consumer fireworks
retail sales facility shall have appropriate and approved training
in the handling of consumer fireworks and shall share that training
with all other employees of the consumer fireworks retail sales
facility and temporary consumer fireworks retail sales facility.
(7) All consumer fireworks retail sales facilities and temporary consumer fireworks retail sales facilities shall be
inspected by representatives of the fire marshal's office prior to
initial certification and thereafter at least annually prior to the
prime fireworks sales season.
(8) All sales of consumer fireworks shall be accompanied by
delivery to the purchaser of a consumer fireworks safety brochure.
(9) A minor child under the age of eighteen years shall not be
admitted to a consumer fireworks retail sales facility or a
temporary consumer fireworks retail sales facility unless
accompanied by a parent or guardian.
(10) Age requirements shall be verified by a state issued
photo driver's license or photo I.D. or by a valid passport, which
proof of age document shall be recorded on a statement signed by
the purchaser.
(e) Civil money penalty. -- A retailer who violates this
section shall pay to the fire marshal a civil money penalty of not
less than $500 nor more than $2,500 for each violation.
§29-3E-7. Fireworks safety fee imposed.
(a) Imposition of fee. -- A user fee, known as the fireworks
safety fee, is levied on retail sales in this state of consumer
fireworks and is computed as provided in section nine of this
article.
(b) Collection of fee. -- A person who acquires consumer
fireworks in a retail transaction is liable for the fireworks safety fee on the transaction and, except as otherwise provided in
this article, shall pay the fireworks safety fee to the retailer as
a separate added amount to the consideration in the transaction:
Provided, That the consideration does not include the tax imposed
by article fifteen, chapter eleven of this code, a local sales tax
imposed pursuant to article thirteen-c, chapter eight of this code,
or a district excise tax imposed pursuant to article twenty-two,
chapter seven of this code or article thirty-eight, chapter eight
of this code. Additionally, the measure of those taxes does not
include the fireworks safety fee imposed by this section.
(c) Collected fees held in trust. -- The retailer shall
collect the fireworks safety fee as an agent for the state and pay
it over to the State Treasurer as provided in section nine of this
article.
(d) Deposit of fees. -- The fireworks safety fee shall be
deposited in the Fireworks Safety Fund created in section ten of
this article.
§29-3E-8. Computation of fireworks safety fee.
(a) General. -- The fireworks safety fee is measured by the
gross retail income from the sale of consumer fireworks received by
a retail merchant in a retail unitary transaction of consumer
fireworks and imposed at the following rates:
FireworksGross Retail
Safety FeeIncome
0 less than 10ó
1óat least 10ó but less than 30ó
2óat least 30ó but less than 50ó
3ó at least 50ó but less than 70ó
4ó at least 70ó but less than 90ó
5ó at least 90ó but less than $1.10
(b) Consideration in excess of one dollar. -- On a retail
unitary transaction in which the gross retail income received by
the retail merchant is $1.10 or more, the fireworks safety fee is
five percent of that gross retail income. If the fireworks safety
fee computed under this subsection results in a fraction of one-
half cent or more, the amount of the fireworks safety fee is
rounded to the next additional cent.
§29-3E-9. Duties of fireworks retailers.
(a) In general. --
(1) A retailer has a duty to remit the fireworks safety fee
imposed in section seven of this article and computed as provided
in section eight of this article to the State Treasurer on or
before the twentieth day of the calendar month after the month in
which the fee was collected by the retailer.
(2) A retailer has a duty to hold the fireworks safety fees
collected in trust for the state until remitted to the State
Treasurer.
(3) A retailer is personally liable for any failure to timely
pay the fireworks safety fee money to the State Treasurer as
provided in this section.
(4) Fireworks safety fees not remitted to the State Treasurer
on or before the due date are delinquent on the twenty-first day
and are then collectable by the State Treasurer by any means
available to him or her for collection of debts due the state.
(b) Delinquent fees. -- Delinquent fees shall bear interest,
which is computed at an annual rate of six percent from the due
date of the payment until the date the delinquent fees are paid to
the State Treasurer. A delinquent retailer shall also pay to the
State Treasurer a civil money penalty equal to five percent of the
fees not timely paid for each month or fraction thereof the fees
are not paid.
§29-3E-10. Fireworks Safety Fund established
; Fire Marshal
Fireworks account established; West Virginia State Firemen's
Association account created; use of funds.
(a) Establishment of Fireworks Safety Fund. -- The Fireworks
Safety Fund is hereby created on behalf of the State Fire
Commission created pursuant to section three, article three,
chapter twenty-nine of this code, within the State Treasury as an
interest bearing, nonexpiring special revenue account to be known
as the Fireworks Safety Fund. The Fireworks Safety Fund shall be
separate and apart from the General Revenue Fund. Expenditures of the fund are authorized pursuant to collection.
(b) Deposits to Fireworks Safety Fund. -- All fees and civil
money penalties authorized and collected pursuant to this article
shall be paid to the State Fire Marshal and deposited into the
Fireworks Safety Fund. In addition to all fees and civil money
penalties authorized and collected pursuant to this article
deposited into the Fireworks Safety Fund, the Fireworks Safety Fund
shall consist of income from the investment of moneys held in the
fund, such other moneys as the Legislature may appropriate to the
fund and all other moneys available for deposit to the fund from
any source, public or private.
(c) Expenditure of moneys deposited into Fireworks Safety
Fund. -- The first $300,000 from moneys available in the Fireworks
Safety Fund shall be expended by the Fire Marshall for the purposes
set forth in this article and article three of this chapter at the
sole discretion of the Fire Marshal. The next $25,000 of moneys
available in the Fireworks Safety Fund shall be transferred to the
West Virginia State Firemen's Association for the benefit of and
use by the charitable organization for its charitable purpose.
However, if the West Virginia State Firemen's Association does not
exist, is no longer in good standing with the State of West
Virginia or does not maintain its 501(c)(4) status with the
Internal Revenue Service, such transfer shall not occur.
(d) Disposition of Fireworks Safety Fund to the Fire Protection Fund. - All moneys remaining in the Fireworks Safety
Fund after the transfers set forth in subsection (c) of this
section shall be paid into the Fire Protection Fund created in
section thirty-three, article three, chapter thirty-three of this
code for allocation by the Treasurer to volunteer and part-
volunteer fire companies and departments.
§29-3E-11. Rule making and content of rules.
(a) Authorization. -- The fire marshal may adopt procedural
and interpretive rules or propose legislative rules for legislative
approval, as appropriate under the provisions article three,
chapter twenty-nine-a of this code that he or she considers
necessary to administer this article. The rules may include, but
are not limited to, all of the following:
(1) Establishing fees for processing applications for consumer
firework certificates and for inspection of premises where consumer
fireworks will be sold to determine whether they meet the
requirements of this article;
(2) Creating uniform applications and other forms for
dissemination to and use by local units of government under this
article;
(3) Establishing the criteria to be used by local units of
government and fire chiefs in deciding whether to grant or deny
permits under this article;
(4) Establishing procedures for the collection of application fees and consumer fireworks safety fees;
(5) Providing enforcement of regulatory duties under this
article;
(6) Providing enforcement of the age limitations in this
article;
(7) Establishing additional criteria for the granting of
permits under section sixteen of this article for supervised public
displays of fireworks; and
(8) Establishing the fee for a permit issued under section
sixteen of this article.
(b) Conformity of rules. -- Rules adopted or proposed under
this section shall conform to the following codes developed by the
National Fire Protection Association, except for any code provision
that conflicts with this article:
(1) NFPA 1123, code for fireworks display, 2006 edition;
(2) NFPA 1124, code for the manufacture, transportation,
storage and retail sales of fireworks and pyrotechnic articles,
2006 edition; and
(3) NFPA 1126, standard for the use of pyrotechnics before a
proximate audience, 2006 edition.
(c) Emergency rules. -- The fire marshal may promulgate
emergency rules pursuant to the provisions of section fifteen,
article three of chapter twenty-nine-a of this code by October 1,
2010.
§29-3E-12. Prohibition on officiating a fireworks display.
A person who has one or more convictions for violating this
article may not oversee, manage, or officiate, or be granted a
permit to oversee, manage or officiate, a public display of
fireworks for at least one year after his or her latest conviction
for a violation of this article.
§29-3E-13. Production or transportation of fireworks.
(a) In general. -- A person shall only produce or transport a
firework that is a new explosive and that is either a division 1.3
or division 1.4 explosive if the person first meets the
requirements of 49 CFR 173.56 (2)(j), as in effect on January 1,
2010.
(b) Definitions. -- As used in this section:
(1) "Division 1.3 explosive" means that term as defined in 49
CFR 173.50, as in effect on January 1, 2010.
(2) "Division 1.4 explosive" means that term as defined in 49
CFR 173.50, as in effect on January 1, 2010.
(3) "New explosive" means that term as defined in 49 CFR
173.56, as in effect on January 1, 2010.
§29-3E-14. Fire Marshal's Internet site.
The fire marshal shall create and maintain, a section of its
Internet web site that has as its purpose the protection of the
residents of this state who purchase, use or transport fireworks.
§29-3E-15. Civil money penalties; criminal penalties.
(a) No detonation in certain places. -- A person may not
ignite, discharge or use consumer fireworks on public property,
school property, church property or the property of another person
without that organization's or person's express permission to use
those fireworks on those premises. Except as otherwise provided in
this subsection, a person who violates this subsection shall pay to
the fire marshal a civil money penalty of not less than $100 nor
more than $500. However, a person who commits a second or
subsequent violation of this subsection is guilty of a misdemeanor
and, upon conviction thereof, shall be confined in jail for not
more than thirty days or fined not less than $500 nor more than
$1,000, or both confined and fined.
(b) Persons under age eighteen. -- A person who is less than
eighteen years of age may not possess, purchase, or offer for sale
consumer fireworks. Except as otherwise provided in this
subsection, a person who violates this subsection shall pay to the
fire marshal a civil money penalty of not less than $100 nor more
than $500.
(c) Discharging fireworks during certain hours prohibited. --
Except as otherwise provided in this subsection, a person may not
ignite, discharge, or use consumer fireworks before 10 a.m. or
after 11 p.m. However, on a legal holiday in this state, a person
may not ignite, discharge or use consumer fireworks between 1 a.m.
and 9 a.m. of the same day. A person who violates this subsection
shall pay to the fire marshal a civil money penalty of not less than $100 nor more than $500. However, a person who commits a
second or subsequent violation of this subsection is guilty of a
misdemeanor and, upon conviction thereof, shall be confined for not
more than thirty days or fined not less than $100 nor more than
$500, or both confined and fined.
(d) Damage to property of another person. -- If a person
violates this article and by that violation causes damage to the
property of another person, the person is guilty of a misdemeanor
and, upon conviction thereof, shall be confined in jail for not
more than thirty days or fined not less than $500 nor more than
$1,000, or both confined and fined.
(e) Bodily injury. -- If a person violates this article and by
that violation causes injury to another person, the person is
guilty of a misdemeanor and, upon conviction thereof, shall be
imprisoned in a correctional facility for not more than one year
or fined not less than $50 nor more than $500, or both imprisoned
and fined. However, if a person violates this article and by that
violation intentionally causes serious bodily injury to another
person, the person is guilty of a felony and, upon conviction
thereof, shall be confined in a correctional facility for not more
than three years, or fined not less than $100 nor more than $2,000,
or both imprisoned and fined.
(f) Death of another person. -- If a person violates this
article and by that violation causes the death of another person,
the person is guilty of a felony and, upon conviction thereof, shall be imprisoned in a correctional facility for not more than
five years or fined not less than $2,000 nor more than $5,000, or
both imprisoned and fined.
(g) Failure to collect or remit fireworks safety fee. -- A
person who fails to collect or remit a fireworks safety fee as
required under section seven of this article is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in jail
for not more than one year or fined not less than $1,000 nor more
than $2,000, or both confined and fined.
§29-3E-16. Permit for public fireworks display.
(a) The State Fire Marshal may adopt reasonable rules as
provided in section eleven of this article for the granting of
permits for the supervised displays of fireworks by municipalities,
fair associations, amusement parks, and other organizations or
groups of individuals. However, any rule promulgated by the fire
marshal under section twenty-four, article three of this chapter
and in effect on the day this section is enacted shall remain in
effect until such time as it is superceded by a rule implemented
under this section.
(b) Fee for permit. -- The fire marshal has the authority to
charge a fee of $10 to each applicant requesting a license to be a
pyrotechnic operator as set forth in this article. The fire
marshal shall charge a scaled fee for all applications requesting
permits to establish a pyrotechnics display as provided in this
section.
(c) Deposit of fees. -- All fees required to be paid by this
section shall be paid to the fire marshal and thereafter deposited
by him or her into a special account pursuant to section ten of
this article.
(d) Approval by local police and fire authorities. -- These
permits may be granted upon application to the fire marshal and
after approval of the local police and fire authorities of the
community where the display is proposed to be held as provided
herein and the filing of a bond by the applicant as provided in
subsection (e). The display shall be handled by a competent
operator licensed or certified as to competency by the fire marshal
and shall be of such composition, character, and so located,
discharged or fired as in the opinion of the chief of the fire
department, after proper inspection, and of the chief of police as
to not be hazardous to property or endanger any person(s). After
the privilege has been granted, the sale, possession, use and
distribution of fireworks for display is lawful for that purpose
only. A granted permit is not transferable.
(e) Bond requirement. -- The governing body, or chief
executive authority of the municipality, shall require a bond from
the licensee in a sum not less than $1,000 conditioned on
compliance with the provisions of this article and the rules of the
fire marshal except where the licensee is a municipality.
(f) Proof of financial responsibility. -- Before any permit
for a pyrotechnic display is issued, the person applying for the permit shall furnish proof of financial responsibility to satisfy
claims for damages to property or personal injuries arising out of
any act or omission on the part of the person or an employee
thereof, in the amount, character and form as the fire marshal
determines to be necessary for the protection of the public.
§29-3E-17. Designation of attorney for service of process.
No permit may be issued under the provisions of section
sixteen of this article to a nonresident person for conduct of a
pyrotechnic display in this state until the person has appointed in
writing an attorney, who both resides in and is authorized to
practice law in West Virginia, upon whom all process in any action
or proceeding against the person may be served.
§29-3E-18. Seizures by fire marshal; enforcement of law.
The fire marshal shall seize, take, remove and destroy, or
cause to be seized, taken or removed and destroyed, at the expense
of the owner, all stocks of fireworks or combustibles offered or
exposed for sale, stored or held in violation of this article. It
is the duty of the West Virginia State Police, county sheriffs and
their deputies, municipal policemen and other law-enforcement
officers to assist in the enforcement of this article.
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(NOTE: The purpose of this bill is to revise, consolidate and
codify laws relating to the purchase, possession, sale and use of
fireworks in this state.
Sections of current law that would be repealed are, §29-3-23, §29-3-24 and §29-3-25.
Sections 29-3E-1 through 29-3E-18 are new; therefore, strike-
throughs and underscoring have been omitted.)