HB2646 S JUDICIARY AM #1

Lovell 7908

The Committee on the Judiciary moved to amend the bill by striking out everything after the enacting clause and inserting in lieu thereof the following:

That §11-12-86 of the Code of West Virginia, 1931, as amended, be repealed; that §29-3-23, §29-3-24, §29-3-25 and §29-3-26 of said code be repealed; that said code be amended by adding thereto a new section, designated §9A-1-11b; that §11-17-3 of said code be amended and reenacted; that §16-2-11 of said code be amended and reenacted; that said code be amended by adding thereto a new section designated §16-2-13a; that said code be amended by adding 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 and §29-3E-13; and that §61-3E-1 and §61-3E-11 of said code be amended and reenacted, all to read as follows:

CHAPTER 9A. VETERANS’ AFFAIRS.

ARTICLE 1. DEPARTMENT OF VETERANS’ AFFAIRS.

§9A-1-11b. Establishment of West Virginia Veterans Program Fund.

There is hereby created in the State Treasury a special revenue fund to be designated and known as the West Virginia Veterans Program Fund, which shall consist of revenues derived from the assessment of the fireworks safety fee, as provided in section seven, article three-e, chapter twenty-nine of this code, to be administered by the Department of Veterans’ Affairs and used for funding veterans’ programs. Funds may also be derived from any gift, grant, bequest, endowed fund or donation which may be received by any veterans’ program created by statute or from any governmental entity or unit or any person, firm, foundation or corporation.

Expenditures from the fund shall be for the purposes set forth in this article and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon the fulfillment of the provisions set forth in article two, chapter eleven-b of this code: Provided, That for the fiscal year ending June 30, 2016, expenditures are authorized from collections rather than pursuant to an explicit appropriation by the Legislature. Any balance remaining in the fund at the end of any fiscal year shall be reappropriated to the next fiscal year.

CHAPTER 11. TAXATION.

ARTICLE 17. TOBACCO PRODUCTS EXCISE TAX ACT.

§11-17-3. Levy of tax; ratio; dedication of proceeds.

(a) Tax on cigarettes. -- For the purpose of providing revenue for the General Revenue Fund of the state, an excise tax is hereby levied and imposed on sales of cigarettes at the rate of 55¢ on each twenty cigarettes or in like ratio on any part thereof. Only one sale of the same article shall be used in computing the amount of tax due under this subsection: Provided, That effective July 1, 2015, the excise tax imposed by this subsection shall be at the rate of $1.05 on each twenty cigarettes or in like ratio on any part thereof: Provided, however, That effective July 1, 2016, the excise tax imposed by this subsection shall be at the rate of $1.55 on each twenty cigarettes or in like ratio on any part thereof: Provided further, That during the period of July 1, 2015 to June 30, 2016, notwithstanding any provision of this code to the contrary, the sum of $20 million collected shall be dedicated to and paid into the West Virginia Veterans Program Fund created by the provisions of section eleven-b, article one, chapter nine of this code: And provided further, That during the period from July 1, 2016 to June 30, 2017, notwithstanding any provision of this code to the contrary, the sum of $20 million collected shall be dedicated to and paid into the Consolidated Medical Services Fund, Continuum of Care, for the exclusive purposes of funding controlled substance abuse treatment and facilities; And provided further, That beginning July 1, 2015, and annually thereafter, the sum of $2 million dollars collected shall be dedicated to and paid into the Fire Protection Fund created in section thirty-three, article three, chapter thirty-three of this code to be distributed annually in equal amounts to all volunteer fire departments to be used in conformity with the provisions of said section.

(b) Tax on tobacco products other than cigarettes. -– Effective January 1, 2002, an excise tax is hereby levied and imposed on the sale or use of, other than cigarettes, tobacco products at a rate equal to seven percent of the wholesale price of each article or item of tobacco product other than cigarettes sold by the wholesaler or subjobber dealer, whether or not sold at wholesale, or if not sold, then at the same rate upon the use by the wholesaler or dealer. Only one sale of the same article shall be used in computing the amount of tax due under this subsection. Revenues received from this tax shall be deposited into the General Revenue Fund.

CHAPTER 16. PUBLIC HEALTH

ARTICLE 2. LOCAL BOARDS OF HEALTH

§16-2-11. Local board of health; powers and duties.

(a) Each local board of health created, established and operated pursuant to the provisions of this article shall:

(1) Provide the following basic public health services and programs in accordance with state public health performance-based standards:

(i) Community health promotion including assessing and reporting community health needs to improve health status, facilitating community partnerships including identifying the community’s priority health needs, mobilization of a community around identified priorities and monitoring the progress of community health education services;

(ii) Environmental health protection including the promoting and maintaining of clean and safe air, water, food and facilities and the administering of public health laws as specified by the commissioner as to general sanitation, the sanitation of public drinking water, sewage and wastewater, food and milk, and the sanitation of housing, institutions, and recreation; and

(iii) Communicable or reportable disease prevention and control including disease surveillance, case investigation and follow-up, outbreak investigation, response to epidemics, and prevention and control of rabies, sexually transmitted diseases, vaccine preventable diseases, HIV/AIDS, tuberculosis and other communicable and reportable diseases;

(2) Appoint a local health officer to serve at the will and pleasure of the local board of health with approval of the commissioner;

(3) Submit a general plan of operation to the commissioner for approval, if it receives any state or federal money for health purposes. This program plan shall be submitted annually and comply with provisions of the local board of health standards administrative rule;

(4) Provide equipment and facilities for the local health department that are in compliance with federal and state law;

(5) Permit the commissioner to act by and through it, as needed. The commissioner may enforce all public health laws of this state, the rules and orders of the secretary, any county commission orders or municipal ordinances of the board’s service area relating to public health, and the rules and orders of the local board within the service area of a local board. The commissioner may enforce these laws, rules and orders when, in the opinion of the commissioner, a public health emergency exists or when the local board fails or refuses to enforce public health laws and rules necessary to prevent and control the spread of a communicable or reportable disease dangerous to the public health. The expenses incurred shall be charged against the counties or municipalities concerned;

(6) Deposit all moneys and collected fees into an account designated for local board of health purposes. The moneys for a municipal board of health shall be deposited with the municipal treasury in the service area. The moneys for a county board of health shall be deposited with the county treasury in the service area. The moneys for a combined local board of health shall be deposited in an account as designated in the plan of combination: Provided, That nothing contained in this subsection is intended to conflict with the provisions of article one, chapter sixteen of this code;

(7) Submit vouchers or other instruments approved by the board and signed by the local health officer or designated representative to the county or municipal treasurer for payment of necessary and reasonable expenditures from the county or municipal public health funds: Provided, That a combined local board of health shall draw upon its public health funds account in the manner designated in the plan of combination;

(8) Participate in audits, be in compliance with tax procedures required by the state and annually develop a budget for the next fiscal year;

(9) Perform public health duties assigned by order of a county commission or by municipal ordinance consistent with state public health laws; and

(10) Enforce the public health laws of this state and any other laws of this state applicable to the local board.

(b) Each local board of health created, established and operated pursuant to the provisions of this article may:

(1) Provide primary care services, clinical and categorical programs, and enhanced public health services;

(2) Employ or contract with any technical, administrative, clerical or other persons, to serve as needed and at the will and pleasure of the local board of health. Staff and any contractors providing services to the board shall comply with applicable West Virginia certification and licensure requirements. Eligible staff employed by the board shall be covered by the rules of the Division of Personnel under section six, article ten, chapter twenty-nine of this code. However, any local board of health may, in the alternative and with the consent and approval of the appointing authority, establish and adopt a merit system for its eligible employees. The merit system may be similar to the state merit system and may be established by the local board by its order, subject to the approval of the appointing authority, adopting and making applicable to the local health department all, or any portion of any order, rule, standard, or compensation rate in effect in the state merit system as may be desired and as is properly applicable;

(3) Adopt and promulgate and from time to time amend rules consistent with state public health laws and the rules of the West Virginia state Department of Health and Human Resources, that are necessary and proper for the protection of the general health of the service area and the prevention of the introduction, propagation and spread of disease. All rules shall be filed with the clerk of the county commission or the clerk or the recorder of the municipality or both and shall be kept by the clerk or recording officer in a separate book as public records;

(4) Accept, receive and receipt for money or property from any federal, state or local governmental agency, from any other public source or from any private source, to be used for public health purposes or for the establishment or construction of public health facilities;

(5) Assess, charge and collect fees for permits and licenses for the provision of public health services: Provided, That permits and licenses required for agricultural activities may not be assessed, charged or collected: Provided, however, That a local board of health may assess, charge and collect all of the expenses of inspection of the physical plant and facilities of any distributor, producer or pasteurizer of milk whose milk distribution, production or pasteurization facilities are located outside this state but who sells or distributes in the state, or transports, causes or permits to be transported into this state, milk or milk products for resale, use or consumption in the state and in the service area of the local board of health. A local board of health may not assess, charge and collect the expenses of inspection if the physical plant and facilities are regularly inspected by another agency of this state or its governmental subdivisions or by an agency of another state or its governmental subdivisions certified as an approved inspection agency by the commissioner. No more than one local board of health may act as the regular inspection agency of the physical plant and facilities; when two or more include an inspection of the physical plant and facilities in a regular schedule, the commissioner shall designate one as the regular inspection agency;

(6) Assess, charge and collect fees for services provided by the local health department: Provided, That fees for services shall be submitted to and approved by the commissioner;

(7) Contract for payment with any municipality, county or Board of Education for the provision of local health services or for the use of public health facilities. Any contract shall be in writing and permit provision of services or use of facilities for a period not to exceed one fiscal year. The written contract may include provisions for annual renewal by agreement of the parties; and

(8) Retain and make available child safety car seats, collect rental and security deposit fees for the expenses of retaining and making available child safety car seats, and conduct public education activities concerning the use and preventing the misuse of child safety car seats: Provided, That this subsection is not intended to conflict with the provisions of section forty-six, article fifteen, chapter seventeen-c of this code: Provided, however, That any local board of health offering a child safety car seat program or employee or agent of a local board of health is immune from civil or criminal liability in any action relating to the improper use, malfunction or inadequate maintenance of the child safety car seat and in any action relating to the improper placement, maintenance or securing of a child in a child safety car seat.

(9) In consultation with the State Fire Marshal, develop for distribution to the general public a consumer fireworks safety program in the light of the changes made to the types of fireworks available for sale in this state enacted during the 2015 regular session of the legislature.

(c) The local boards of health are charged with protecting the health and safety, as well as promoting the interests of the citizens of West Virginia. All state funds appropriated by the Legislature for the benefit of local boards of health shall be used for provision of basic public health services.

§16-2-13a. Requiring certain facilities to provide for smoking and nonsmoking sections.

(a) Notwithstanding any provision of law to the contrary, any operational veteran’s organization exempt from federal income tax under section 501(c)(19) of the Internal Revenue Code or any facility holding a valid racetrack video lottery license granted by the West Virginia Lottery Commission pursuant to article twenty-two-a, chapter twenty-nine of the code may allow smoking in such facility, but shall provide a smoking and nonsmoking section if smoking is allowed.

(b) A facility holding a valid racetrack video lottery license granted by th West Virginia Lottery Commission pursuant to article twenty-two-a, chapter twenty-nine of this code must have;

(1) A permanent ventilation system that ensures a minimum air exchange of six times per hour throughout the indoor space and a minimum air exchange of twelve times per hour in the indoor space that serves food, unless the food space is designated nonsmoking;

(2) A smoking area restricted to persons twenty-one years of age or older; and

(3) At least ten percent of the indoor space of the area designated a nonsmoking area.

CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.

ARTICLE 3E. FIREWORKS SAFETY.

§29-3E-1. Unlawful acts.

It is unlawful for a person to manufacture, wholesale, distribute, import, sell or store for the purpose of resale, consumer fireworks, sparkling devices, novelties or toy caps without a license, registration, certificate or permit from the State Fire Marshal.

§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 APA Standard 87-1 published by the American Pyrotechnics Association, 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 C.F.R. §172.101 (2014);

(4) "Consumer fireworks" means small fireworks devices 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 C.F.R. Parts 1500 and 1507 (2014), and that are listed in APA Standard 87-1. Consumer fireworks do not include sparkling devices, novelties and toy caps;

(5) "Consumer fireworks certificate" means a certificate issued under section five of this article;

(6) "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 C.F.R. §172.101 (2014);

(7) "Distributor" means a person who sells fireworks to wholesalers and retailers for resale;

(8) "Division 1.3 explosive" means that term as defined in 49 C.F.R. §173.50 (2014);

(9) "Division 1.4 explosive" means that term as defined in 49 C.F.R. §173.50 (2014);

(10) "Explosive composition" means a chemical or mixture of chemicals that produces an audible effect by deflagration or detonation when ignited;

(11) "Fire marshal" means the State Fire Marshal;

(12) "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 include consumer fireworks, display fireworks and special effects. Fireworks does not include sparkling devices, novelties and toy caps and model rockets;

(13) "Interstate wholesaler" means a person who is engaged in interstate commerce selling fireworks;

(14) “Model rocket” means that term as defined in National Fire Protection Association Standard 1122, “Code for Model Rocketry”;

(15) "New explosive" means that term as defined in 49 C.F.R. §173.56 (2014);

(16) "NFPA 1123" means that term as defined in National Fire Protection Association Standard 1123, "Code for Fireworks Display."

(17) "NFPA 1124" means that term as defined in National Fire Protection Association Standard 1124, "Code for the Manufacture, Transportation, Storage, and Retail Sales of Fireworks and Pyrotechnic Articles,” 2006 Edition.

(18) "NFPA 1126" means that term as defined in National Fire Protection Association Standard 1126, "Standard for the Use of Pyrotechnics Before a Proximate Audience."

(19) "Novelties" means that term as defined under APA standard 87-1, section 3.2; but shall not include toy pistols, toy caps, toy canes, toy guns or other similar devices;

(20) "Person" means an individual, or the responsible person for an association, an organization, a partnership, a limited partnership, a limited liability company, a corporation, or any other group or combination acting as a unit;

(21) "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;

(22) "Retailer" means a person who purchases consumer fireworks for resale to consumers;

(23) "Sparkling devices" means "ground or handheld sparkling devices" as that phrase is defined under APA 87-1, sections 3.1.1 and 3.5;

(24) "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;

(25) “Temporary facility” means that term as defined in NFPA 1124;

(26) "Toy caps" means that term as defined under APA 87-1, section 3.3; and

(27) "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. Production or transportation of fireworks.

A person may produce or transport a firework that is a new explosive and that is either a division 1.3 explosive or division 1.4 explosive if the person first meets the requirements of 49 C.F.R. §173.56(2)(j) (2014).

§29-3E-4. Sparkling devices and novelties registration required.

(a) A person may not sell sparkling devices, novelties or toy caps without being registered with the State Fire Marshal.

(b) To be registered with the Fire Marshal, the retailer shall:

(1) Submit an application to the Fire Marshal;

(2) Provide a copy of his or her current business registration certificate or his or her certificate to sell sparklers and novelties issued by the State Tax Commission;

(3) Pay the required fee; and

(4) Provide other information as the Fire Marshal may require by legislative rule.

(d) A registration is not transferable.

(e) A person shall post the registration in a conspicuous place at the location of the business.

(f) A separate registration is required for each location.

(g) The fee required in subdivision (3), subsection (b) of this section shall be $100.00 per retail location.

(h) The fee assessed by this section shall be retained by the Fire Marshal and expended to offset costs incurred in performing the duties imposed by the provisions of this code.

(i) The requirements of NFPA 1124 do not apply to a person only selling sparkling devices, novelties or toy caps.

§29-3E-5. Consumer fireworks certificate required.

(a) A retailer may not sell consumer fireworks unless the retailer is certified under this article.

(b) To be certified to sell consumer fireworks a retailer shall:

(1) Submit an application to the Fire Marshal;

(2) Provide a copy of his or her current business registration certificate;

(3) Pay the required fee;

(4) Provide proof that the retailer maintains at all times public liability and product liability insurance with minimum coverage limits of $1 million dollars to cover losses, damages or injuries that might result of the license selling consumer fireworks.

(5) Provide other information as the Fire Marshal may require by legislative rule.

(d) A consumer fireworks certificate is not transferable.

(e) A retailer shall post the certificate in a conspicuous place at the location of the business.

(f) A separate certificate is required for each location of the business.

(g) A certificate holder may also sell sparkling device and novelties at the same location without additionally obtaining a sparkling devices and novelties registration.

(h) A retailer who sells consumer fireworks shall comply with the regulations provided in NFPA 1124. The State Fire Marshal may, by legislative rule, add to the regulations established in NFPA 1124.

(i) The fees required in subdivision (3), subsection (b) of this section shall be assessed as follows:

(1) Temporary facility sales - $500.00.

(2) Retail stores and consumer fireworks retail sales facilities - $1,000.00.

(j) The fees assessed by this section shall be retained by the Fire Marshall and expended to offset that costs incurred by the duties imposed by the provisions of this code.

(k) Consumer fireworks may only be offered for sale at the following locations:

(1) In temporary facilities located on parking lots of operational veterans organizations exempt from federal income tax under section 501(c)(19) of the Internal Revenue Code;

(2) In temporary facilities located on parking lots of licensed retail stores which offer general merchandise for sale and said stores are occupied;

(3) In temporary facilities located on parking lots of facilities holding a valid racetrack video lottery license granted by the West Virginia Lottery Commission pursuant to article twenty-two-A, chapter twenty-nine of this code; and

(4) In permanent structures occupied and operated as licensed retail stores or as a consumer fireworks retail sales facility: Provided, That facilities referenced in this subdivision meet the requirements for such structures set forth in NFPA 1124.

§29-3E-6. Required permit for public fireworks display.

(a) A municipality, county, fair association, amusement park, and other organizations shall have a permit to present a supervised display of fireworks from the Fire Marshall.

(b) To receive a permit, a municipality, fair association, amusement park, and other organizations shall:

(1) Submit an application to the Fire Marshal;

(2) Pay the required fee;

(3) 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; and

(4) Provide any other information as the Fire Marshal may require by legislative rule.

(c) The Fire Marshal may require approval of the local police and fire authorities of the community where the display is proposed to be held.

(d) A permit is not transferable.

(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 so as to be safe in the opinion of the chief of the fire department serving the community or area where such display is to be held.

(f) The permittee 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 an insured government entity.

§29-3E-7. Fireworks safety fee; administration, tax crimes, collections, remittances, deposits, distributions, rules.

(a) In addition to the sales tax, a fireworks safety fee of ten percent of all sales is levied on retail sales of consumer fireworks in this state. The fee shall be distributed pursuant to the provisions of this section. The fee computation under this section shall be carried to the third decimal place, and the fee rounded up to the next whole cent whenever the third decimal place is greater than four, and rounded down to the lower whole cent whenever the third decimal place is four or less.

(b) A person who purchases consumer fireworks in a retail transaction shall pay to the retailer the amount of the fee levied by this section, which fee is added to and constitutes a part of the sale price, and is collectible by the retailer who shall account to the state for all fees paid by a purchaser. If the retailer fails to collect the fee, or fails to account to the state for the fees paid by a purchaser, then the retailer is personally liable for the payment of the fee to the state.

(c) A retailer shall remit the to the State Tax Commissioner no later than twenty days after the end of each preceding month all monies collected for such preceding month, pursuant to the requirements of this section, and shall report such collections on forms and in the manner prescribed by the State Tax Commissioner.

(d) All monies so remitted, net of refunds and adjustments, shall be paid by the Tax Commissioner into the State General Fund, and the amount thereof shall be distributed and paid quarterly, by the Treasurer, into the funds and to the distributees specified in this subsection.

One hundred percent of fireworks safety fee moneys, net of refunds and adjustments shall be deposited in the West Virginia Veterans Program Fund, established in section eleven-b, article one, chapter nine-a of this code, for expenditure pursuant to the provisions of that section.

(e) Each and every provision of the West Virginia Tax Procedure and Administration Act set forth in article ten, chapter eleven of this code, applies to the fees imposed pursuant to this article, with like effect as if that act were applicable only to the fees imposed by this article and were set forth in extenso in this article.

(f) Each and every provision of the West Virginia Tax Crimes and Penalties Act set forth in article nine, chapter eleven of this code applies to the fees imposed pursuant to this article, with like effect as if that act were applicable only to the fees imposed by this article and were set forth in extenso in this article.

(g) The State Tax Commissioner may make all necessary rules and regulations for the fees to which this article applies as provided in the State Administrative Procedures Act in chapter twenty-nine-a of this code.

(h) Notwithstanding any other provision of this code to the contrary, the State Tax Commissioner may deduct and retain one percent from each payment into the General Fund, as provided in this section, for the benefit of his or her office for general tax administration, from which expenditures are permitted from collections without appropriation by the Legislature.

§29-3E-8. Rule-making authority.

(a) The Fire Marshal may propose emergency rules and shall promulgate legislative rules for promulgation, in accordance with the provisions of article three, chapter twenty-nine-a of this code, to implement the provisions of this article, including:

(1) Adopting by reference the 2006 edition of APA Standard 87-1;

(2) Adopting by reference the most recent edition of NFPA 1123, code for fireworks display;

(3) Adopting by reference the most recent edition of NFPA 1124, code for the manufacture, transportation, storage and retail sales of fireworks and pyrotechnic articles;

(4) Adopting by reference the most recent edition of NFPA 1126, standard for the use of pyrotechnics before a proximate audience, as promulgated by the State Fire Commission;

(5) Procedures for the issuance and renewal of a registration, certificate and permit;

(6) A fee schedule;

(7) Establishing insurance or bond requirements;

(8) Establishing additional criteria for the granting of a registration, certificate, or permit under this article; and

(9) Registration of manufacturers, wholesalers and distributors.

§29-3E-9. Exemptions from article.

This article does not prohibit any of the following:

(1) The use of fireworks by railroads or other transportation agencies for signal purposes or illumination;

(2) The use of agricultural and wildlife fireworks;

(3) The sale or use of blank cartridges for a theatrical performance, use by military organizations or signal or ceremonial purposes in athletics or sports; or

(4) 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 Fire Marshal.

§29-3E-10. Local municipalities’ regulation of consumer fireworks.

This article does not affect the right of the governing body of a municipality to prohibit the use of consumer fireworks within its boundaries.

§29-3E-11. Violations of this article.

(a) A person may not intentionally ignite, discharge or use consumer fireworks or sparkling devices on public property or private property without the express permission of the owner to do so.

(b) A person may not intentionally ignite or discharge any consumer fireworks or sparkling devices within or throw the same from a motor vehicle or building.

(c) A person may not intentionally ignite or discharge any consumer fireworks or sparkling devices into or at a motor vehicle or building, or at any person or group of people.

(d) A person may not intentionally ignite or discharge any consumer fireworks or sparkling devices while the person:

(1) Is under the influence of alcohol;

(2) Is under the influence of any controlled substance;

(3) Is under the influence of any other drug;

(4) Is under the combined influence of alcohol and any controlled substance or any other drug; or

(5) Has an alcohol concentration in his or her blood of eight hundredths of one percent or more by weight.

(e) A person who is less than eighteen years of age may not purchase, nor offer for sale, consumer fireworks: Provided, That a person sixteen years of age or older may purchase, offer for sale and possess sparkling devices and novelties.

§29-3E-12. Criminal penalties.

Any person who violates this article or any rules promulgated pursuant to section eight of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $500.

§29-3E-13. Seizures by the Fire Marshal; enforcement of law.

(a) The Fire Marshal shall seize, take, remove and dispose of at public auction or destroy, or cause to be seized, taken or removed and disposed of at public auction, or 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 legislative rule.

(b) The West Virginia State Police, sheriffs, municipal police officers and other law-enforcement officers shall assist in the enforcement of this article.

CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 3E. OFFENSES INVOLVING EXPLOSIVES.

§61-3E-1. Definitions.

As used in this article, unless the context otherwise requires:

(a) "Destructive device" means any bomb, grenade, mine, rocket, missile, pipebomb or similar device containing an explosive, incendiary, explosive gas or expanding gas which is designed or so constructed as to explode by such filler and is capable of causing bodily harm or property damage; any combination of parts, either designed or intended for use in converting any device into a destructive device and from which a destructive device may be readily assembled.

"Destructive device" does not include a firearm as such is defined in section two, article seven of this chapter, sparkling devices, novelties or model rockets and their components as defined in this section twenty-three, article three, chapter twenty-nine of this code or fireworks as defined in section two, article three-e, chapter twenty-nine of this code, or high power rockets and their components, as defined in this section.

(b) "Explosive material" means any chemical compound, mechanical mixture or device that is commonly used or can be used for the purpose of producing an explosion and which contains any oxidizing and combustive units or other ingredients in such proportions, quantities or packaging that an ignition by fire, by friction, by concussion, by percussion, by detonator or by any part of the compound or mixture may cause a sudden generation of highly heated gases. These materials include, but are not limited to, powders for blasting, high or low explosives, blasting materials, blasting agents, blasting emulsions, blasting fuses other than electric circuit breakers, detonators, blasting caps and other detonating agents and black or smokeless powders not manufactured or used for lawful sporting purposes. or fireworks defined in section twenty-three, article three, chapter twenty-nine of this code which are not used in violation of this article. Also included are all explosive materials listed annually by the office of the State Fire Marshal and published in the State Register, said publication being hereby mandated.

(c) "High power rocket" means the term as defined in National Fire Protection Association Standard 1127, "Code for High Power Rocketry."

(c) (d) "Hoax bomb" means any device or object that by its design, construction, content or characteristics appears to be, or is represented to be or to contain a destructive device, explosive material or incendiary device as defined in this section, but is, in fact, an inoperative facsimile or imitation of such a destructive device, explosive material or incendiary device.

(d) (e) "Incendiary device" means a container containing gasoline, kerosene, fuel oil, or derivative thereof, or other flammable or combustible material, having a wick or other substance or device which, if set or ignited, is capable of igniting such gasoline, kerosene, fuel oil, or derivative thereof, or other flammable or combustible material: Provided, That no similar device commercially manufactured and used solely for the purpose of illumination shall be deemed to be an incendiary device.

(e) (f) "Legal authority" means that right as expressly stated by statute or law.

(g) "Model rocket" means the term as defined in National Fire Protection Association Standard 1122, "Code for Model Rocketry."

(f) (h) "Person" shall mean means an individual, corporation, company, association, firm, partnership, society or joint stock company.

(g) (i) "Storage magazine" is defined to mean any building or structure, other than an explosives manufacturing building, approved by the legal authority for the storage of explosive materials.

§61-3E-11. Exemptions.

(a) Unless specifically prohibited by any provision of this code or the laws of the United States, nothing in this article shall prohibit prohibits the authorized manufacture, sale, transportation, distribution, use or possession of any explosive material by any person holding a permit for such issued by the office of the State Fire Marshal. Any person performing a lawful activity pursuant to or regulated by the terms of a permit issued by the Division of Environmental Protection, or any office thereof, shall be is exempt from the provisions of this article.

(b) Unless specifically prohibited by any other provision of this code or the laws of the United States, nothing in this section shall prohibit prohibits the authorized manufacture, transportation, distribution, use or possession of any explosive, destructive device or incendiary device by a member of the Armed Forces or law-enforcement officers whenever such persons are acting lawfully and in the line of duty; nor shall it prohibit the manufacture, transportation, distribution, use or possession of any explosive material, destructive device or incendiary device to be used solely for lawful scientific research or lawful educational purposes. Any person engaged in otherwise lawful blasting activities failing to obtain a permit or in possession of an expired permit issued by the office of the State Fire Marshal shall not be construed to be is not in violation of the article.

(c) Nothing contained in this article applies to sparkling devices or novelties or to the sale, purchase, possession, use, transportation or storage of fireworks as regulated in article three-e, chapter twenty-nine of this code.