Senate Bill No. 754
(By Senators McCabe and K. Facemyer)
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[Introduced March 23, 2009; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
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A BILL to repeal §11-12-86 of the Code of West Virginia, 1931, as
amended; to repeal §29-3-23, §29-3-24, §29-3-25 and §29-3-26
of said code; and to amend said code by adding thereto
nineteen new sections, 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, §29-3E-18 and
§29-3E-19, all relating generally to revising, consolidating
and codifying the laws relating to fireworks; regulating
purchase, possession, sale and use of fireworks; providing for
civil money penalties, criminal penalties and remedies;
prescribing powers and duties of certain state agencies; and
providing an effective date.
Be it enacted by the Legislature of West Virginia:
That §11-12-86 of the Code of West Virginia, 1931, as amended, be repealed; that §29-3-23, §29-3-24, §29-3-25 and §29-3-26 of said
code be repealed; and that said code be further amended by adding
thereto nineteen new sections, 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, §29-3E-18 and §29-3E-19, all to
read as follows:
ARTICLE 3E. FIREWORKS SAFETY.
§29-3E-1. Short title.
This act shall be 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, 2009.
(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, 2009,
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, 2009, 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 and low-grade 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, 2009, 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, low-grade fireworks, articles pyrotechnic,
display fireworks and special effects.
(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,
2009.
(B) Novelties as defined under APA standard 87-1 3.2, as in
effect on January 1, 2009.
(C) Toy Caps as defined under APA standard 87-1 3.3, as in
effect on January 1, 2009.
(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, low-grade fireworks and novelties 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 novelties and low-
grade fireworks listed in APA standard 87-1, as in effect on
January 1, 2009.
(22) "Wholesaler" means any person who sells consumer
fireworks, low-grade fireworks and novelties to a retailer or any
other person for resale and any person who sells articles
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 or low-grade 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 any of the
following:
(A) A show or play.
(B) Signal or ceremonial purposes in athletics or sports.
(C) Use by military organizations.
(5) The possession, sale, or disposal of fireworks incidental
to the public display of fireworks by wholesalers or other persons
who possess 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.
(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 or low-grade 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 or low-grade fireworks unless the retailer annually
obtains and maintains a valid consumer fireworks certificate from
the Fire Marshal for each location from which consumer fireworks or
low-grade fireworks are to be sold as provided in this section.
(b)
Application for certificate. -- An application for a
consumer fireworks certificate under this section shall meet all of
the following requirements:
(1) The application is submitted no later than March 1 of each
year in which consumer fireworks or low-grade fireworks are to be
sold.
(2) The application lists the name and address of each
location from which consumer fireworks or low-grade fireworks are
to be sold.
(3) The applicant attaches to the application a copy of its
business registration certificate issued under article twelve,
chapter eleven of this article, for each location from which it
intends to sell consumer fireworks or low-grade fireworks.
(4) The applicant provides all other information or
documentation required by application prescribed by the State Fire
Marshal.
(5) The application includes a registration fee as follows:
(A) Five hundred dollars for each consumer fireworks retail
sales facility location from which consumer fireworks or low-grade
fireworks will be sold.
(B) Five hundred dollars for each temporary consumer fireworks
retail sales facility location from which low-grade fireworks will
be sold.
(C) Two hundred dollars for each general merchandise store
that will sell low-grade fireworks.
(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 facilities. -- Consumer fireworks and
low-grade fireworks may be sold by retailers only from facilities
that meet the following criteria:
(1) Consumer fireworks or low-grade fireworks may be sold by
retailers only from a permanent consumer fireworks retail sales facility that complies with the following criteria:
(A) A consumer fireworks retail sales facility must be
dedicated solely to the sale of consumer fireworks, low-grade
fireworks and related items.
(B) 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, 2009, as
such are not in conflict with the provisions of this article.
(C) 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.
(D) A consumer fireworks retail sales facility shall be
located a minimum of three hundred feet from another consumer
fireworks retail sales facility.
(E) A consumer fireworks retail sales facility shall be
equipped with monitored fire and intrusion alarm systems in
compliance with (NFPA) 72.
(F) The retail sales area of a consumer fireworks retail sales
facility to which the public may be admitted shall be limited to
ten thousand square feet and be of single-story, noncombustible
construction.
(G) 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.
(H) 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.
(I) A consumer fireworks retail sales facility shall be
equipped with a smoke ventilation system.
(J) Aisles in a consumer fireworks retail sales facility shall
have minimum widths of sixty inches.
(K) A consumer fireworks retail sales facility shall maintain
public liability and product liability insurance with minimum
coverage limits of $2 million.
(L) 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.
(M) Minors are not permitted in a consumer fireworks retail
sales facility unless accompanied by a parent or guardian.
(N) Minors are not permitted to ride in strollers or shopping
carts in a consumer fireworks retail sales facility.
(0) Interior finish shall be either Class A or Class B.
(P) 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. -- Low-grade 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 shall
be located not 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 shall
have no vehicle parked closer to it than twenty feet, except when
delivering, loading or unloading low-grade 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 low-grade fireworks for a period of
not more than forty-five days in any calendar year.
(c)
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 TRSF for seven days prior to and including July 4,
of each year.
(2) All consumer fireworks and low-grade 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 shall be permitted in a consumer fireworks retail
sales facility, temporary consumer fireworks retail sales facility
or a store where consumer fireworks or low-grade fireworks are
sold, and there shall be no smoking in any such sales facility or
within fifty feet thereof.
(4) An individual must be at least eighteen years of age to
work in a consumer fireworks retail sales facility, temporary
consumer fireworks retail sales facility or in the low-grade
fireworks and novelty section of a store or to be able to purchase
consumer fireworks or low-grade fireworks.
(5) No individual who has been convicted of or pled guilty to
a felony shall be permitted to hold any interest in or work in any
business licensed in this state to sell consumer fireworks or low-grade 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 such 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 or low-grade 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 may 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.
(d)
Bond and insurance requirement for sales from tents. -- A retailer who offers to sell low-grade fireworks under this section
from a tent shall, for each tent location, obtain a bond in the
amount of $5,000 for the storage of hazardous material, and obtain
and maintain product liability insurance in the amount of $5
million from an insurance company authorized to write insurance in
this state.
(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 hereby levied on retail sales in this state of
consumer fireworks or low-grade fireworks and shall be computed as
provided in section nine of this article.
(b)
Collection of fee. -- A person who acquires consumer
fireworks or low-grade 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 and
low-grade fireworks received by a retail merchant in a retail
unitary transaction of consumer fireworks and low-grade fireworks
and imposed at the following rates:
FireworksGross Retail
Safety FeeIncome
0 less than $0.10
1 centat least $0.10 but less than $0.30
2 centsat least $0.30 but less than $0.50
3 cents at least $0.50 but less than $0.70
4 cents at least $0.70 but less than $0.90
5 cents at least $0.90 but less than $1.00
(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.
(c)
Rounding rule. -- If the fireworks safety fee computed
under subsection (a) results in a fraction of one-half cent or
more, the amount of the fireworks safety fee shall be rounded to
the next additional cent.
§29-3E-9. Duties of fireworks retailers.
(a)
In general. -- A retailer has a duty to:
(1) 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) Holds the fireworks safety fees collected in trust for the
state until remitted to the State Treasurer; and
(3) 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 shall be delinquent on the twenty-first
day and shall be 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 shall be 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.
(a)
Establishment of fund. -- The Fireworks Safety Fund is
hereby created within the State Treasury as an interest bearing,
nonexpiring account separate and apart from the General Revenue
Fund.
(b)
Deposits. -- The State Treasurer may receive money or
other assets from any source for deposit into the fund. The State
Treasurer shall direct the investment of the fund. The State
Treasurer shall credit to the fund interest and earnings from fund
investments.
(c)
Revolving fund. -- Money in the fund at the close of the
fiscal year shall remain in the fund and does not lapse to the
general fund.
(d)
Deposit of civil money penalties. -- All civil money
penalties collected under this article shall be deposited in the
Fireworks Safety Fund.
(e)
Disposition of fees and other receipts. -- Expenditures
from the fund shall be for the purposes set forth in this article
and article three of this chapter at the sole discretion of the
Fire Marshal.
§29-3E-11. Rule making and content of rules.
(a)
Authorization. -- The Fire Marshal may promulgate the
rules he or she considers necessary to administer this article.
The rules may be promulgated in accordance with the provisions of
article three, chapter twenty-nine-a of this code. The rules may,
include, but not limited to, all of the following:
(1)Establishing fees for processing applications for
consumer firework certificates and for inspection of premises where
fireworks or low-grade-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 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.
(8) Establishing the fee for a permit issued under section
sixteen of this article.
(b)
Conformity of rules. -- Rules promulgated 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.
(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,
2009.
§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,
or produce and 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, 2009.
(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, 2009.
(2) "Division 1.4 explosive" means that term as defined in 49
CFR 173.50, as in effect on January 1, 2009.
(3) "New explosive" means that term as defined in 49 CFR
173.56, as in effect on January 1, 2009.
§29-3E-14. Fire Marshal's Internet site.
The Fire Marshal shall create and maintain, or cause to be
created and maintained, 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 or low-grade 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 or low-grade 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 or low-grade fireworks
before 10 a.m. or after 10 p.m. However, on a legal holiday in
this state, a person may not ignite, discharge or use consumer
fireworks or low-grade 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 a state
correctional facility 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 serious impairment of a body function 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 one year or fined not less than $1,000 nor more
than $2,000, or both imprisoned and fined. As used in this
subsection, "serious impairment of a body function" includes, but
is not limited to, one or more of the following:
(1) Loss of a limb or loss of use of a limb.
(2) Loss of a foot, hand, finger or thumb or loss of use of a
foot, hand, finger or thumb.
(3) Loss of an eye or ear or loss of use of an eye or ear.
(4) Loss or substantial impairment of a bodily function.
(5) Serious visible disfigurement.
(6) A comatose state that lasts for more than three days.
(7) Measurable brain or mental impairment.
(8) A skull fracture or other serious bone fracture.
(9) Subdural hemorrhage or subdural hematoma.
(10) Loss of an organ.
(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 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 imprisoned and fined.
§29-3E-16. Permit for public fireworks display.
(a) 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
: Provided, That 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 implementing this section is promulgated by the Fire
Marshal as provided in this section eleven of this article.
(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 the
provisions of 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 wherein the display is proposed to be held as provided
herein and the filing of a bond by the applicant as provided
hereinafter. Every such 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 or persons.
After such privilege has been granted, the sale, possession, use
and distribution of fireworks for such display is lawful for that
purpose only. No permit granted hereunder is 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
: Provided, That no municipality is required to file
such bond.
(f)
Proof of financial responsibility. -- Before any permit
for a pyrotechnic display is issued, the person making the
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 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 such person has appointed
in writing a person authorized to practice law in this state and
residing therein to be his or her attorney 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 shall be 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.
§29-3E-19. Effective date.
This article shall take effect upon its passage.
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 §11-12-86,
§29-3-23, §29-3-24, §29-3-25 and §29-3-26.
These sections are new; therefore, strike-throughs and
underscoring have been omitted.