H. B. 2694


(By Delegates Collins and Rowe)
[Introduced March 24, 1993; referred to the
Committee on the Judiciary then Finance.]




A BILL to repeal sections twenty-three, twenty-four, twenty-five, twenty-six and twenty-seven, article three, chapter twenty- nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend chapter eleven of said code by adding thereto a new article, designated article nineteen-a; to amend and reenact section twelve, article three of said chapter twenty-nine; and to amend said chapter twenty-nine by adding thereto a new article, designated article three-c, all relating to the use, sale, storage, transportation, licensing and taxing of fireworks.

Be it enacted by the Legislature of West Virginia:
That sections twenty-three, twenty-four, twenty-five, twenty-six and twenty-seven, article three, chapter twenty-nine of the code of West Virginia, one thousand nine hundred thirty- one, as amended, be repealed; that chapter eleven of said code be amended by adding thereto a new article, designated article nineteen-a; that section twelve, article three of said chaptertwenty-nine be amended and reenacted; and that said chapter twenty-nine be amended by adding thereto a new article, designated article three-c, all to read as follows:
CHAPTER 11. TAXATION.

ARTICLE 19A. FIREWORKS TAX.

§11-19A-1. Definitions.

As used in this article:
(a) "Commissioner" means the state tax commissioner, and where the meaning of the context requires, all deputies and employees duly authorized by him or her.
(b) "Distributor" shall mean any person who manufactures, produces or purchases for sale to retail dealers any permissible fireworks.
(c) "Permissible fireworks" or "fireworks" shall include those fireworks consisting of ICC Class C, "common fireworks" as enumerated in section one, article three-c, chapter twenty-nine of this code.
(d) "Person" shall mean and include an individual, firm, partnership, association or corporation.
(e) "Retail dealer" includes every person other than a wholesale dealer selling such fireworks.
(f) "Wholesale dealer" includes only those persons who sell permissible fireworks to retail dealers for the purpose of resale.
§11-19A-2. Excise tax on fireworks; disposition thereof.

An excise tax is hereby levied and imposed on and after thefirst day of July, one thousand nine hundred ninety-three, upon the sale, use, handling and distribution of all permissible fireworks. The excise tax imposed shall be two cents on each whole dollar and one cent on each fraction thereof.
Any distributor, wholesale dealer or retailer or any other person who is the original consignee of any fireworks as described herein, or who brings such fireworks into this state, shall be liable for the excise tax hereby imposed. The excise tax here imposed shall not be collected more than once in respect to any fireworks sold, used or distributed in this state. All revenue collected by the commissioner under the provisions of this article, less the costs of administration as are hereinafter provided for, shall be paid by him or her into the general revenue fund.
§11-19A-3. Affixing of tax stamps.

The payment of the taxes herein provided shall be evidenced by the affixing of fireworks tax stamps to the original containers or packages in which any fireworks are placed, received, stored or handled. The stamps, of the appropriate denomination, shall be affixed to each container or package of fireworks by the person who under the provisions of this article is first required to pay the tax thereon, within twenty-four hours after a person has a container or package of fireworks in his or her possession for the first time. The provisions of this paragraph shall not apply to fireworks which are transported through this state and which are not sold, delivered, used orstored herein, if transported in accordance with the rules as may be promulgated by the commissioner.
Except as otherwise provided in this section, it shall be unlawful for any person to sell, use, handle or distribute any fireworks to which the tax stamps required by this section are not affixed, and any person who shall violate this provision shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment for not more than six months, or by both fine and imprisonment.
§11-19A-4. Cancellation and removal of stamps.

Any person subject to the tax imposed by this article who affixes a fireworks stamp to a container or package shall be required to immediately cancel the stamp by writing or marking initials thereon and the date upon which the stamp was affixed. When any container or package to which a stamp has been affixed is emptied, the person emptying the same or on whose behalf the same has been emptied shall be required to immediately remove or deface the tax stamp thereon.
§11-19A-5. Purchase of tax stamps; discounts and commissions; refunds and statute of limitations; effective date.

The commissioner is hereby authorized to promulgate rules and regulations governing the design, purchase, sale and distribution of tax stamps required by this article.
The commissioner shall sell the stamps required by this article, or may authorize any sheriff, or any bank or trustcompany in this state, to sell the stamps as his or her deputy, and may allow as a commission a fee of one half of one percent of the face value of all stamps sold by the deputy. In the sale of the stamps the commissioner shall allow the following discounts: On a sale of less than twenty-five dollars, no discount; on a sale of twenty-five dollars or over and less than fifty dollars, a discount of five percent; and on a sale of fifty dollars or more, a discount of ten percent.
In the case of stamps, the tax imposed by this article shall be paid in advance at the time the stamps are purchased. The discount allowed on the sale of tax stamps, shall be in lieu of the allowance of any claim for refund by reason of the breakage or destruction of containers stamped as provided in this article, the spoilation of the fireworks, or the loss or destruction of tax stamps: Provided, That when the tax stamps or fireworks upon which tax has been paid are destroyed by fire, lightning or flood and when fireworks upon which tax has been paid are exported from this state or are required to be destroyed pursuant to federal or state order, the taxpayer may file a claim for refund for an amount equal to the amount of tax actually paid for the stamps. The commissioner shall cause a refund to be made under this section only when a claim for refund is filed within one hundred and eighty days from the date the tax stamps were destroyed or the fireworks upon which tax was paid were destroyed or exported from this state. Any claim for refund not timely filed shall not be construed to be or to constitute a moral obligation of thisstate for payment. The claim for refund shall also be subject to the provisions of section fourteen, article ten of this chapter. At the election of the taxpayer, the amount of any refund may be established as a credit. The amount refunded or credited under this section shall not be subject to the interest provisions of subsection (d), section seventeen, article ten of this chapter.
Effective date. -- The provisions of this section as hereby amended shall apply to fireworks tax stamps destroyed on or after the first day of July, one thousand nine hundred ninety-one, and to fireworks exported or destroyed on or after the first day of said July.
§11-19A-6. Due date of reports; additional reports; extension of time.

Every person subject to the tax imposed by this article shall on or before the fifteenth day of each month make and file with the commissioner a report of the person's operations for the preceding month to verify liability for tax under this article. This report shall be in a form prescribed by the tax commissioner.
The commissioner may by fifteen days' written notice require the filing of the additional reports as he or she deems necessary to verify a person's liability under this article.
Upon written application setting forth good cause, the commissioner may extend the time for filing the reports or additional reports on the terms and conditions as he or she may require.
§11-19A-7. Additional penalty for late filing or payment.

In addition to the additions to tax, penalties and interest authorized in article ten of this chapter, if any taxpayer fails to file a return or pay the proper amount of tax within the time specified herein, the commissioner shall refuse to authorize the purchase of tax stamps by the delinquent taxpayer: Provided, That if the failure to pay was due to reasonable cause, the commissioner may waive this penalty. The taxpayer may request a hearing within sixty days after service of notice of the refusal of the commissioner to authorize the purchase of the tax stamps. Upon receipt of a written request for a hearing filed within the time prescribed the provision for hearing and appeal, sections nine and ten, article ten of this chapter shall be applicable.
§11-19A-8. Seizure and sale of fireworks by commissioner; forfeiture; collection of tax.

Whenever the commissioner or any of his or her duly authorized agents shall discover any fireworks, subject to tax as provided by this article and upon which the tax has not been paid as herein required, the commissioner or his or her duly authorized agent is hereby authorized and empowered forthwith to seize and take possession of the fireworks, which shall thereupon be deemed to be forfeited to the state, and the commissioner shall within a reasonable time thereafter sell the forfeited fireworks; and from the proceeds of the sale shall collect the tax and interest due thereon, together with a penalty of fifty percent of the tax due and the cost incurred in the proceedings,and pay the balance, if any, to the person in whose possession the fireworks were found: Provided, That the seizure and sale shall not be deemed to relieve any person from fine or imprisonment provided herein for violation of any provision of this article. The sale shall be made in the county where most convenient and economical. Notice of the sale shall be published as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for the publication shall be the county wherein the seizure was made and the county wherein the sale is to take place. Notice shall be published at least five days prior to the sale. All moneys collected under the provisions of this section shall be paid into the state treasury and treated as other taxes collected under this article.
§11-19A-9. Altering, counterfeiting or reusing tax stamps; penalty.

Any person who falsely or fraudulently makes, forges, alters, or counterfeits any tax stamp prescribed by the commissioner under the provisions of this article, or who knowingly or willfully utters, passes or tenders as true any false, altered, forged or counterfeited stamp, or who uses more than once any stamp for the purpose of evading the tax imposed by this article, shall be guilty of a felony, and, upon conviction thereof, shall be punished by imprisonment in the penitentiary for not less than one year nor more than five years.
§11-19A-10. Penalties; crimes.

Any person who violates any of the provisions of this article or any lawful rule or regulation promulgated by the tax commissioner for this article under the authority of article ten of this chapter, for the violation of which no other penalty is provided by law, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine of not less than twenty-five dollars nor more than one hundred dollars.
§11-19A-11. Separability.

The provisions of the several sections of this article shall be deemed to be separable insofar as they or their meaning is not inseparably connected, and if any provisions of this article shall be held unconstitutional, the holding shall not affect any of the other provisions thereof.
§11-19A-12. General procedure and administration.

Each and every provision of the "West Virginia Tax Procedure and Administration Act" set forth in article ten of this chapter shall apply to the tax imposed by this article nineteen-a with like effect as if said act were applicable only to the tax imposed by this article nineteen-a and were set forth in extenso in this article nineteen-a.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.

ARTICLE 3. FIRE PREVENTION AND CONTROL ACT.

§29-3-12. Powers and duties of state fire marshal.

(a) Enforcement of laws. -- The state fire marshal shall enforce all laws of the state having to do with:
(1) Prevention of fire.
(2) The storage, sale and use of any explosive, combustible or other dangerous article in solid, flammable liquid or gas form.
(3) The installation and maintenance of equipment of all sorts intended to extinguish, detect and control fires.
(4) The means and adequacy of exit, in case of fire, from buildings and all other places in which persons work, live or congregate from time to time for any purpose, except buildings used wholly as dwelling houses for no more than two families.
(5) The suppression of arson.
(6) Fireworks.
(b) Assistance upon request. -- Upon request, the state fire marshal shall immediately assist any chief of any recognized fire company or department.
(c) Enforcement of regulations. -- The state fire marshal shall enforce the regulations promulgated by the state fire commission as authorized by section three of this article.
(d) Inspections generally. -- The state fire marshal shall inspect all state, county and municipally owned institutions, all public and private schools, theaters, churches and other places of public assembly as to fire exits and reasonable safety standards and report his findings and recommendations to the proper administrative heads.
(e) Right of entry. -- The state fire marshal may at all reasonable hours enter any building or premises, other than dwelling houses, for the purpose of making an inspection, whichhe or she may deem necessary to be made under the provisions of this article.
(f) Investigations. -- The state fire marshal may at any time investigate as to the origin or circumstances of any fire or explosion or attempt to cause fire or explosion occurring in the state. The state fire marshal shall have the authority at all times of the day or night, in performance of the duties imposed by the provisions of this article, to investigate where any fires or attempt to cause fires shall have occurred, or which at the time may be burning. Notwithstanding the above provisions of this subsection, prior to entering any building or premises for the purposes of such an investigation, the state fire marshal shall obtain a proper search warrant: Provided, That the same shall not be necessary where there is permissive waiver or the state fire marshal is an invitee of the individual having legal custody and control of the property, building or premises to be searched.
(g) Testimony. -- The state fire marshal, in making an inspection or investigation, when in his or her judgment the proceedings are necessary, may take the statements or testimony under oath of all persons who may be cognizant of any facts or have any knowledge about the matter to be examined and inquired into, and may have the statements or testimony reduced to writing; and shall transmit a copy of such the statements or testimony so taken to the prosecuting attorney for the county wherein the fire or explosion or attempt to cause a fire orexplosion occurred. Notwithstanding the above, no a person shall not be compelled to testify or give any such statement under this subsection.
(h) Arrests; warrants; penalty. -- When in their judgment such the examination as described in subsection (g) of this section discloses that the fire or explosion or attempt to cause a fire or explosion was of incendiary origin, the state fire marshal, any full-time deputy fire marshal or any full-time assistant fire marshal are hereby authorized and empowered:
(1) To arrest the supposed incendiary anywhere within the confines of the state of West Virginia, or have him arrested, for any violation of the provisions of this article or of the arson- related offenses of article three, chapter sixty-one of this code: Provided, That any and all persons so arrested shall be forthwith brought before the magistrate or circuit court.
(2) To make complaint in writing before any court or officer having jurisdiction and obtain, serve and execute an arrest warrant when knowing or having reason to believe that anyone has committed an offense under any provision of this article or of the arson-related offenses of article three, chapter sixty-one of this code. Proper return shall be made on all arrest warrants before the tribunal having jurisdiction over such the violation.
(3) To make complaint in writing before any court or officer having jurisdiction and obtain, serve and execute a warrant for the search of any premises that may possess evidence or unlawful contraband relating to violations of this article or of thearson-related offenses of article three, chapter sixty-one of this code. Proper return shall be made on all search warrants before the tribunal having jurisdiction over such violation.
(i) Witnesses and oaths. -- The state fire marshal is empowered and authorized to issue subpoenas and subpoenas duces tecum to compel the attendance of persons before him to testify in relation to any matter which is, by the provision of this article, a subject of inquiry and investigation by the state fire marshal and cause to be produced before him or her any papers as he or she may require in making such an examination. The state fire marshal is hereby authorized to administer oaths and affirmations to persons appearing as witnesses before him or her. False swearing in any matter or proceeding aforesaid shall be deemed perjury and shall be punishable as such.
(j) Deputizing members of fire departments in this state. - - The state fire marshal may deputize a member of any fire department, duly organized and operating in this state, who is approved by the chief of his or her department and who is properly qualified, to act as his assistant for the purpose of making inspections with the consent of the property owner or the person in control of such the property and the investigations as may be directed by the state fire marshal, and the carrying out of such the orders as may be prescribed by him or her, to enforce and make effective the provisions of this article and any and all regulations promulgated by the state fire commission under authority of this article: Provided, That in the case of avolunteer fire department, only the chief thereof or his single designated assistant may be so deputized.
(k) Written report of examinations. -- The state fire marshal shall, at the request of the county commission of any county or the municipal authorities of any incorporated municipality in this state, make to them a written report of the examination made by him or her regarding any fire happening within their respective jurisdictions.
(l) Report of losses by insurance companies. -- It shall be the duty of each fire insurance company or association doing business in this state, within ten days after the adjustment of any loss sustained by it that exceeds fifteen hundred dollars, to report to the state fire marshal, upon forms furnished by him or her, such any information regarding the amount of insurance, the value of the property insured and the amount of claim as adjusted, as in the judgment of the state fire marshal it is necessary for him or her to know. This report is in addition to such any information required by the state insurance commissioner. Upon the request of the owner or insurer of any property destroyed or injured by fire or explosion, or in which an attempt to cause a fire or explosion may have occurred, the state fire marshal shall make a written report to the person requesting the same of the result of the examination made by him regarding the property.
(m) Issuance of permits and licenses. -- The state fire marshal is authorized to issue permits and licenses as requiredin this article.
(n) Issuance of citations for fire and life safety violations. -- The state fire marshal, any full-time deputy fire marshal, any full-time assistant fire marshal are hereby authorized, and any person deputized pursuant to subsection (j) of this section who is approved by the chief of his or her department and who is properly qualified, may be authorized by the state fire marshal, to issue citations, in their respective jurisdictions, for fire and life safety violations of the state fire code and as provided for by the rules and regulations promulgated by the state fire commission in accordance with article three, chapter twenty-nine-a of this code: Provided, That a summary report of all citations issued pursuant to this section by persons deputized under subsection (j) of this section shall be forwarded semiannually to the state fire marshal in such the form and containing such the information as he or she may by regulation require, including the violation for which the citation was issued, the date of issuance, the name of the person issuing the citation and the person to whom the citation was issued. The state fire marshal may at any time revoke the authorization of a person deputized pursuant to subsection (j) of this section to issue citations, if in the opinion of the state fire marshal, the exercise of such authority by such the person is inappropriate.
Violations for which citations may be issued include, but are not limited to:
(1) Overcrowding places of public assembly;
(2) Locked or blocked exits in public areas;
(3) Failure to abate a fire hazard;
(4) Blocking of fire lanes or fire department connections; and
(5) Tampering with, or rendering inoperable except during necessary maintenance or repairs, on-premise firefighting equipment, fire detection equipment and fire alarm systems.
No person deputized pursuant to subsection (j) of this section may be authorized to issue a citation unless that person has satisfactorily completed a law-enforcement officer training course designed specifically for fire marshals. The course shall be approved by the law-enforcement training subcommittee of the governor's committee on criminal justice and highway safety and the state fire commission. In addition, no person deputized pursuant to subsection (j) of this section may be authorized to issue a citation until evidence of liability coverage of such the person has been provided, in the case of a paid municipal fire department by the municipality wherein the fire department is located, or in the case of a volunteer fire department, by the county commission of the county wherein the fire department is located or by the municipality served by such the volunteer fire department, and that evidence of liability coverage has been filed with the state fire marshal.
(o) Penalties for violations. -- Any person who violates any fire and life safety regulation of the state fire code shall beguilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than one hundred dollars or imprisoned in the county jail not more than ninety days, or both fined and imprisoned.
Each and every day during which any illegal erection, construction, reconstruction, alteration, maintenance or use continues after knowledge or official notice that same is illegal, shall be deemed as a separate offense.
ARTICLE 3C. FIREWORKS AND EXPLOSIVES.

§29-3C-1. Sale, storage, transportation or use of impermissible fireworks, permissible fireworks; identification.

(a) It shall be unlawful for persons to possess, sell, offer for sale, store, transport or use within this state any fireworks other than the permissible fireworks herein enumerated. The permissible fireworks consist of ICC Class C, "Common Fireworks" only, and mean the articles of fireworks as are enumerated as ICC Class C, "Common Fireworks" in the regulations of the interstate commerce commission for the transportation of explosives and other dangerous articles, and include the following:
(1) Roman candles whose total pyrotechnic composition does not exceed twenty grams each in weight;
(2) Bottle type rockets whose total pyrotechnic composition does not exceed twenty grams each in weight;
(3) Cylindrical foundations whose total pyrotechnic composition does not exceed seventy-five grams each in weight and whose inside diameter does not exceed three-fourths inch;
(4) Cone fountains whose total pyrotechnic composition does not exceed fifty grams each in weight;
(5) Wheels whose total pyrotechnic composition does not exceed sixty grams in weight, for each driver unit, but there may be any number of drivers on any one wheel and the inside bore of driver tubes may not be over one-half inch;
(6) Illumination torches and colored fire in any form whose total pyrotechnic composition does not exceed one hundred grams each in weight;
(7) Sparklers whose total pyrotechnic composition does not exceed one hundred grams each in weight;
(8) Firecrackers and salutes with casings, the external dimensions of which do not exceed one and one-half inches in length and one-quarter inch in diameter, and other items designed to produce an audible effect, total pyrotechnic composition not to exceed two grains each in weight; and
(9) Items composed of a combination of two or more articles or devices of the above enumerated approved items.
A component of any device listed in this section which is designed to produce an audible effect may not contain pyrotechnic composition in excess of two grains in weight excluding propelling or expelling charges. Pyrotechnic composition containing any chlorate or perchlorate may not exceed five grams. All other fireworks not enumerated in this section are declared contraband, except as herein provided.
(b) No permissible articles of common fireworks enumeratedmay be sold, offered for sale, possessed, stored or used in the state unless they shall be properly named to conform with this section and unless they are certified as "Common Fireworks" on all shipping cases and by printing on the article to be of sufficient size and so positioned as to be readily recognized by law-enforcement authorities and the general public.
(c) The term "fireworks" does not include toy paper pistol caps which contain less than twenty-five hundredths of a grain of explosive compounds, toy pistols, toy canes, toy guns or other devices using paper caps and the sale and use of these items is permitted at all times.
§29-3C-2. Exceptions to application of article.

Nothing in this article applies:
(a) To the shipping, sale, possession and use of fireworks for public displays, and the items of fireworks which are to be used for public display only and which are otherwise prohibited for sale and use within the state include display shells designed to be fired from mortars and display set pieces of fireworks classified by the regulations of the interstate commerce commission as "Class B Special Fireworks," and do not include items of commercial fireworks as cherry bombs, tubular salutes, repeating bombs, aerial bombs and torpedoes;
(b) To the manufacture, storage, sale or use of signals necessary for the safe operation of railroads or other public or private transportation;
(c) To illuminating devices for photographic use;
(d) To the military or naval forces of the state or United States;
(e) To peace officers; and
(f) To the sale or use of blank cartridges for ceremonial, theatrical or athletic events.
§29-3C-3. Exception of storage and sale of agricultural and display fireworks by licensed distributor.

Nothing in this chapter prohibits a licensed wholesale distributor from storing for sale where legal all Class "B" fireworks used for display or agricultural purposes after first obtaining a license therefor from the state fire commission. The cost of the license is seven hundred fifty dollars.
Agricultural and display fireworks must be stored in an appropriate building and a record of purchases and sales must be kept for inspection by the state fire commission.
§29-3C-4. Permits and other requirements for firework display; penalty for violation.

The state fire marshal may adopt reasonable rules for the granting of permits for the supervised displays of fireworks by municipalities, fair associations, amusement parks, and other organizations or groups of individuals. The state fire marshal may charge a fee of ten dollars to each applicant requesting a license to be a pyrotechnic operator as set forth in this article. The state fire marshal shall charge a scaled fee for all applications requesting permits to establish a pyrotechnics display as provided in this section. All fees required to bepaid by the provisions of this section shall be paid to the state fire marshal and thereafter deposited by him or her into a special account for other operation of the state fire commission. Permits may be granted upon application to said state fire marshal and after approval of the local police and fire authorities of the community wherein the display is proposed to be held as provided herein and the filing of a bond by the applicant as provided hereinafter. Every display shall be handled by a competent operator licensed or certified as to competency by the state fire marshal and shall be of the 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 or persons. A permit granted hereunder is not transferable.
The governing body or chief executive authority of the municipality shall require a bond from the licensee in a sum not less than one thousand dollars conditioned on compliance with the provisions of this article and the rules of the state fire commission: Provided, That a municipality is not required to file a bond.
Before any permit for a pyrotechnic display may be issued, the person, firm or corporation making application therefor 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, firm or corporation or anyagent or employee thereof, in the amount, character and form as the state fire marshal determines to be necessary for the protection of the public.
§29-3C-5. Wholesale distributor's and jobber's licenses; retailer's license or permit.

(a) Each wholesale distributor of fireworks in this state is required to purchase an annual license from the state fire commission at a cost of one thousand dollars which is subject to regulations of the state fire marshal's office governing storage of fireworks. A "wholesale distributor" is defined as a person or firm selling fireworks to licensed jobbers or licensed retailers.
(b) Each jobber selling fireworks in this state is required to purchase an annual license from the state fire commission at a cost of four hundred dollars which is subject to regulations of the state fire marshal's office governing storage of fireworks. A "jobber" is defined as a person or firm selling fireworks to licensed retailers.
(c) Each retailer is required to procure an annual license or permit at a cost of fifty dollars which authorizes the licensee to sell permissible fireworks. The license or permit must be obtained from the municipal clerk, or comparable municipal official, for retail sales within a municipality, after approval of the applicant and his or her place of business by the municipal fire chief serving such municipality; or, from the county clerk for retail sales in the county outside amunicipality after approval of the applicant and his place of business by the county sheriff. A permit may not be issued to an applicant until the premises where the fireworks are to be kept for the purpose of sale have been inspected and it is determined that the building and the facilities within the building meet safety standards for the storage and sale of permissible fireworks. The issuance of the permit is subject to rules promulgated by the state fire commission governing the storage, safekeeping and sale of fireworks. A person or firm may not be issued a retail license who does not already possess a business registration certificate issued by the state tax commissioner and who has not held the certificate for at least sixty days. Permits issued to retailers must be prominently displayed. A permit provided for herein may not be transferred nor shall a person be permitted to operate under a permit issued to any other person.
(d) The respective licenses and permits must be issued on the form or forms as the state fire commission may determine.
All funds derived from the sale of permits as prescribed in subsection (c) of this section must be retained by the county or municipality collecting the funds.
§29-3C-6. Sales to and purchases from unlicensed persons prohibited; records shall be kept open.

A wholesaler is not allowed to sell fireworks to any nonlicensed jobber or retailer, and the records of all retailers, licensed jobbers, and wholesalers must be open for inspection byauthorized officials to check sales or purchases. Retailers may purchase fireworks only from a manufacturer, jobber or wholesaler licensed to do business in this state. Licensed jobbers may purchase fireworks only from a manufacturer or wholesaler licensed to do business in this state.
§29-3C-7. Manner in which fireworks shall be stored by wholesalers; retailers; proximity to flammable substances.

(a) Fireworks to be sold at wholesale shall be stored in a room set aside for the storage of fireworks only. Over the entrance to this room shall be posted a sign reading, "FIREWORKS- -NO SMOKING--KEEP OPEN FLAMES AWAY."
(b) All retailers shall store permissible fireworks in the original unbroken containers in which such fireworks were shipped and received. Any fireworks that are displayed or offered in bulk outside the original containers shall be displayed in accordance with rules promulgated and adopted by the state fire marshal. Fireworks may not be displayed in windows or where the sun may shine through glass onto the fireworks. At all places where fireworks are stored or sold, the area used by the patrons shall be unobstructed, with clear access to an outside door. The areas where fireworks are stored must have posted signs containing the words "Fireworks for Sale--No Smoking Allowed" in letters not less than four inches high. A person under the age of eighteen years may not be employed as a salesman or handler of fireworks.
(c) Fireworks may not be sold or kept for sale in a place of business where paint, oils, varnishes, turpentine or gasoline or other flammable substances are kept in unbroken containers, unless in a separate and distinct section or department of the store.
§29-3C-8. Sale of fireworks to minors and discharge of fireworks in certain circumstances unlawful.

It is unlawful:
(a) To offer for sale or to sell permissible fireworks to children under the age of fourteen years unless accompanied by a parent;
(b) To explode or ignite fireworks within six hundred feet of any church, hospital, asylum or public school;
(c) To explode or ignite fireworks within seventy-five feet of where fireworks are stored, sold or offered for sale;
(d) To ignite or discharge any permissible fireworks within or throw the same from any motor vehicle; and
(e) To place or throw any ignited fireworks into or at any motor vehicle.
§29-3C-9. Manufacture, storage, transportation or possession of certain fireworks illegal; storage and assembly of public display material; penalty.

It is unlawful to manufacture, store, transport or possess fireworks containing pyrotechnic composition in excess of two grains designed to produce a loud and piercing effect, including, but not limited to, fireworks commonly called "ground salutes"or "cherry bombs," M-80's, T-N-T salutes or "bulldog salutes." A manufacturer shall obtain a permit to store or assemble material for public fireworks displays. A manufacturer may not store public display material in the same building where legal fireworks are offered for sale to retailers.
The provisions of this article may not be construed as prohibiting continuous interstate commerce through this state into another state of any item of fireworks permitted for shipment by regulations of the interstate commerce commission or the United States department of transportation, or their successors. It is unlawful to ship into or through this state or possess, sell or use under any circumstances, any article of fireworks that is forbidden for transportation by regulations of the interstate commerce commission or the United States department of transportation or their successors. Any person who violates the provisions of this section is guilty of a felony, and, upon conviction, shall be fined not more than ten thousand dollars or imprisoned in the state penitentiary for not more than four years, or both fined and imprisoned.
§29-3C-10. Issuance of rules concerning permissible fireworks.

Notwithstanding any other provisions of law, the state fire marshal shall issue rules regarding the storage, transportation, sale and use of permissible fireworks within this state. The rules may prescribe, but shall not be limited to, quantity of fireworks that may be kept, the manner of transporting fireworks within the state, the type of buildings or structures where thefireworks may be kept, sold or used, the manner of storage of fireworks within the buildings or structures and the other matters that may be necessary to protect lives and property. Violations of the rules when duly promulgated shall be punished as provided in section eleven of this article.
§29-3C-11. Penalties.

Any person violating any provisions of this article or rules promulgated by the state fire marshal or the state fire commission, unless otherwise specifically provided in this article, is guilty of a misdemeanor, and, upon conviction, shall be punished:
(a) For a first offense, by a fine of not more than two hundred dollars or imprisonment for not more than thirty days;
(b) For a second offense, by a fine of not less than five hundred dollars nor more than twenty-five hundred dollars or imprisonment for not less than sixty days, or both;
(c) For a third offense, by a fine of not less than one thousand dollars or imprisonment for not less than ninety days nor more than one year, or both.
In addition to the above penalties, the license of any wholesaler, jobber or retailer shall be permanently revoked upon conviction for a third offense.
§29-3C-12. Use of permissible fireworks only on designated days.

Permissible fireworks as designated in section one of this article may be used by the general public only on the following holidays or on days on which these holidays are officiallyrecognized: New Year's Day, Memorial Day, week of Fourth of July, Labor Day and on any other dates designated by the state fire commission.



NOTE: The purpose of this bill is to allow for the sale, transportation, storage, licensing and use of permissible fireworks in West Virginia; authority to issue permits and licenses is vested with the state fire commission. The bill also authorizes an excise tax placed upon the sale and distribution of fireworks; affixing of stamps; penalties and disbursement of tax proceeds to go to the general revenue fund.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

§§11-19A and 29-3C are new; therefore, strike-throughs and underscoring have been omitted.