S07888 Summary:

BILL NOS07888
 
SAME ASSAME AS A10141
 
SPONSORNOZZOLIO
 
COSPNSR
 
MLTSPNSR
 
Rpld & add S270.00 subs 1 - 3, amd S405.00, Pen L; amd S156, add S156-h, Exec L; add S392-j, Gen Bus L
 
Relates to fireworks, dangerous fireworks and sparkling devices.
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S07888 Memo:

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S07888 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          7888
 
                    IN SENATE
 
                                      June 16, 2014
                                       ___________
 
        Introduced  by Sen. NOZZOLIO -- read twice and ordered printed, and when
          printed to be committed to the Committee on Rules
 
        AN ACT to amend the penal law, the executive law and the  general  busi-
          ness  law, in relation to fireworks, dangerous fireworks and sparkling
          devices; and to repeal certain provisions of the  penal  law  relating
          thereto
 

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Subdivisions 1, 2 and 3 of section 270.00 of the penal  law
     2  are  REPEALED and three new subdivisions 1, 2 and 3 are added to read as
     3  follows:
     4    1. Definition of "fireworks" and "dangerous fireworks".  (a) The  term
     5  "fireworks," as used in this section, includes:
     6    (i)  display  fireworks,  which  means fireworks devices in a finished
     7  state, exclusive of mere ornamentation, primarily intended  for  commer-
     8  cial  displays  which  are  designed  to  produce visible and/or audible
     9  effects by combustion, deflagration or detonation,  including,  but  not
    10  limited  to,  salutes containing more than one hundred thirty milligrams

    11  (two grains) of explosive composition,  aerial  shells  containing  more
    12  than  forty  grams of chemical composition exclusive of lift charge, and
    13  other exhibition display items that exceed the limits of consumer  fire-
    14  works  contained  in the American Pyrotechnic Association (APA) Standard
    15  87-1, 2001 edition;
    16    (ii) articles pyrotechnic, which means pyrotechnic devices for profes-
    17  sional use similar to consumer fireworks  in  chemical  composition  and
    18  construction  but  not intended for consumer use and which articles meet
    19  the weight limits for consumer fireworks but are not labeled as such and
    20  are classified by the United States department of transportation  in  49
    21  CFR 172.101 as UN0431;

    22    (iii)  special  effects,  which  means  any  combination  of  chemical
    23  elements or chemical compounds capable of burning independently  of  the
    24  oxygen  of the atmosphere, and designed and intended to produce an audi-
    25  ble, visual, mechanical, or thermal effect as  an  integral  part  of  a
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD15633-03-4

        S. 7888                             2
 
     1  motion  picture,  radio, television, theatrical, or opera production, or
     2  live entertainment;
     3    (iv)  consumer  fireworks  which  are  aerial  in  performance and are

     4  commonly referred to as sky rockets, bottle rockets, missile type  rock-
     5  ets,  helicopters, aerial spinners, roman candles, mines, shell devices,
     6  aerial shell kits, reloadables and  audible  ground  devices  which  are
     7  commonly  referred to as firecrackers and chasers, as well as metal wire
     8  handheld sparklers;
     9    (v) any blank cartridge, blank cartridge  pistol,  or  toy  cannon  in
    10  which  explosives  are used, firecrackers, or any preparation containing
    11  any explosive or inflammable compound or any  tablets  or  other  device
    12  commonly  used  and  sold  as  fireworks containing nitrates, chlorates,
    13  oxalates, sulphides of lead, barium, antimony, arsenic, mercury,  nitro-
    14  glycerine,  phosphorus  or  any  compound  containing any of the same or

    15  other explosives, or any substance  or  combination  of  substances,  or
    16  article  prepared  for  the purpose of producing a visible or an audible
    17  effect by combustion, explosion, deflagration or  detonation,  or  other
    18  device  containing any explosive substance, other than sparkling devices
    19  as defined in subparagraph (vi) of this paragraph; and
    20    (vi) "sparkling devices," as used in this section, includes:
    21    (1) sparkling devices which are ground-based or hand-held devices that
    22  produce a shower of white, gold, or  colored  sparks  as  their  primary
    23  pyrotechnic  effect.  Additional effects may include a colored flame, an
    24  audible crackling effect, an audible whistle effect,  and  smoke.  These

    25  devices  do  not  rise  into the air, do not fire inserts or projectiles
    26  into the air, and do not explode or produce a report (an audible  crack-
    27  ling-type  effect  is  not  considered  to be a report). Ground-based or
    28  hand-held devices that produce a cloud of smoke as their sole  pyrotech-
    29  nic  effect are also included in this category. Types of devices in this
    30  category include:
    31    (A) cylindrical fountain: cylindrical tube containing  not  more  than
    32  seventy-five grams of pyrotechnic composition that may be contained in a
    33  different shaped exterior such as a square, rectangle, cylinder or other
    34  shape  but the interior tubes are cylindrical in shape. Upon ignition, a
    35  shower of colored sparks, and sometimes a whistling effect or smoke,  is

    36  produced.  This  device  may be provided with a spike for insertion into
    37  the ground (spike fountain), a wood or plastic base for placing  on  the
    38  ground  (base  fountain),  or a wood or cardboard handle to be hand held
    39  (handle fountain). When more than one tube is mounted on a common  base,
    40  total pyrotechnic composition may not exceed two hundred grams, and when
    41  tubes  are  securely attached to a base and the tubes are separated from
    42  each other on the base by a distance of at  least  half  an  inch  (12.7
    43  millimeters),  a maximum total weight of five hundred grams of pyrotech-
    44  nic composition shall be allowed.
    45    (B) cone fountain: cardboard or heavy paper cone containing  not  more

    46  than  fifty  grams of pyrotechnic composition. The effect is the same as
    47  that of a cylindrical fountain.  When more than one cone is mounted on a
    48  common base, total pyrotechnic composition may not  exceed  two  hundred
    49  grams, as is outlined in this subparagraph.
    50    (C)  wooden  sparkler/dipped  stick:  these  devices consist of a wood
    51  dowel that has been coated with pyrotechnic composition.  Upon  ignition
    52  of the tip of the device, a shower of sparks is produced.  Sparklers may
    53  contain up to one hundred grams of pyrotechnic composition per item.
    54    (2)  novelties  which  do  not require approval from the United States
    55  department of  transportation  and  are  not  regulated  as  explosives,

    56  provided that they are manufactured and packaged as described below:

        S. 7888                             3
 
     1    (A)  party  popper: small devices with paper or plastic exteriors that
     2  are actuated by means of friction (a  string  or  trigger  is  typically
     3  pulled  to  actuate  the  device).  They  frequently  resemble champagne
     4  bottles or toy pistols in shape.  Upon  activation,  the  device  expels
     5  flame-resistant  paper  streamers,  confetti,  or  other  novelties  and
     6  produces a small report. Devices  may  contain  not  more  than  sixteen
     7  milligrams  (0.25  grains) of explosive composition, which is limited to
     8  potassium chlorate and red phosphorus. These devices must be packaged in

     9  an inner packaging which contains a maximum of seventy-two devices.
    10    (B) snapper: small, paper-wrapped devices containing not more than one
    11  milligram of silver fulminate coated on small bits of  sand  or  gravel.
    12  When  dropped,  the device explodes, producing a small report.  Snappers
    13  must be in inner packages not to exceed  fifty  devices  each,  and  the
    14  inner packages must contain sawdust or a similar, impact-absorbing mate-
    15  rial.
    16    (b)  The  term  "dangerous  fireworks"  means any fireworks capable of
    17  causing serious physical injury and which are:  firecrackers  containing
    18  more  than  fifty  milligrams  of  any  explosive  substance, torpedoes,
    19  skyrockets and rockets including all devices which employ any  combusti-

    20  ble  or  explosive substance and which rise in the air during discharge,
    21  Roman candles, and bombs, provided, however, that in cities with a popu-
    22  lation of one million or more, the term "dangerous fireworks" shall also
    23  include sparklers more than ten inches in length or  one-fourth  of  one
    24  inch  in diameter, or chasers including all devices which dart or travel
    25  about the surface of the ground during discharge.
    26    (c) "Fireworks" and "dangerous  fireworks"  shall  not  be  deemed  to
    27  include the following nor shall the purchase and use of any items listed
    28  below  be subject to the provisions of section 61 of title 12 of the New
    29  York state codes, rules and regulations or section four hundred  eighty,

    30  four  hundred eighty-one, four hundred eighty-two or four hundred eight-
    31  y-three of the general business law:
    32    (i) flares of the type used by railroads or any warning lights common-
    33  ly known as red flares, or marine distress signals of a type approved by
    34  the United States coast guard, or
    35    (ii) toy pistols, toy canes, toy guns or other devices in which  paper
    36  caps  containing  twenty-five  hundredths  grains  or  less of explosive
    37  compound are used, providing they  are  so  constructed  that  the  hand
    38  cannot  come  in  contact  with  the  cap when in place for use, and toy
    39  pistol paper caps which contain less than  twenty-hundredths  grains  of
    40  explosive  mixture,  the sale and use of which shall be permitted at all

    41  times, or
    42    (iii) bank security devices which contain not more than fifty grams of
    43  any compound or substance or any combination thereof, together  with  an
    44  igniter  not  exceeding  0.2  gram,  capable of producing a lachrymating
    45  and/or visible or audible effect, where such device is  stored  or  used
    46  only  by  banks, national banking associations, trust companies, savings
    47  banks, savings  and  loan  associations,  industrial  banks,  or  credit
    48  unions,  or  by  any  manufacturer, wholesaler, dealer, jobber or common
    49  carrier for such devices and where the total storage on any one premises
    50  does not exceed one hundred devices, or
    51    (iv) except in cities with a population of one  million  or  more,  in

    52  those  counties  and  cities that opt by local law pursuant to paragraph
    53  (b) of subdivision five of section 405.00 of this  chapter,  "fireworks"
    54  and  "dangerous  fireworks"  shall  not  be deemed to include "sparkling
    55  devices" as defined in subparagraph (vi) of paragraph (a) of this subdi-
    56  vision.

        S. 7888                             4
 
     1    2. Offense. (a) Except as herein otherwise provided, or except where a
     2  permit is obtained pursuant to section 405.00 of this chapter:
     3    (i)  any  person  who shall offer or expose for sale, sell or furnish,
     4  any fireworks or dangerous fireworks is guilty of a class B misdemeanor;
     5    (ii) any person who shall offer or expose for sale,  sell  or  furnish

     6  any  fireworks  or dangerous fireworks valued at five hundred dollars or
     7  more shall be guilty of a class A misdemeanor;
     8    (iii) any person who shall possess, use, explode or cause  to  explode
     9  any fireworks or dangerous fireworks is guilty of a violation;
    10    (iv)  any  person who shall offer or expose for sale, sell or furnish,
    11  any dangerous fireworks, fireworks or sparkling devices  to  any  person
    12  who is under the age of eighteen is guilty of a class A misdemeanor.
    13    (b)  A  person  who  has  previously  been convicted of a violation of
    14  subparagraph (iv) of  paragraph  (a)  of  this  subdivision  within  the
    15  preceding  five  years  and  who shall offer or expose for sale, sell or

    16  furnish, any dangerous fireworks to any person who is under the  age  of
    17  eighteen, shall be guilty of a class E felony.
    18    (c)  Possession  of  fireworks  or  dangerous  fireworks valued at one
    19  hundred fifty dollars or more shall be a presumption that such fireworks
    20  were intended to be offered or exposed for sale.
    21    3. Exceptions. (a) The provisions of this section shall not apply to:
    22    (i) fireworks, dangerous fireworks, and  sparkling  devices  while  in
    23  possession  of railroads, common or contract carriers, retailers, whole-
    24  salers, distributors, jobbers and transportation companies or  transpor-
    25  tation  agencies for the purpose of transportation to points without the
    26  state, the shipment of which is not prohibited  by  interstate  commerce

    27  commission  regulations  as  formulated and published from time to time,
    28  unless they be held voluntarily by such railroads,  common  or  contract
    29  carriers,  retailers, wholesalers, distributors, jobbers and transporta-
    30  tion agencies or transporting companies as warehousemen for delivery  to
    31  points within the state;
    32    (ii)  signaling  devices  used by railroad companies or motor vehicles
    33  referred to in subdivision seventeen of section three  hundred  seventy-
    34  five of the vehicle and traffic law;
    35    (iii) high explosives for blasting or similar purposes;
    36    (iv)  fireworks, dangerous fireworks and sparkling devices for the use
    37  thereof by the United States military, and departments of the state  and
    38  federal government;

    39    (v)  the use, transportation and storage of fireworks, dangerous fire-
    40  works and sparkling devices and special effects materials in  connection
    41  with  the  production  of  motion pictures, television programs, commer-
    42  cials, and all entertainment media recorded in  any  current  or  to  be
    43  designed  format  when  such  use,  transportation  and storage has been
    44  appropriately permitted by the  local  governmental  subdivision  having
    45  jurisdiction.
    46    (b) Nothing in this article shall be construed to prohibit:
    47    (i)  any  manufacturer,  wholesaler,  retailer,  dealer or jobber from
    48  manufacturing, possessing or selling at wholesale a sparkling device  to
    49  municipalities,  religious  or  civic  organizations, fair associations,

    50  amusement parks, or other  organizations  authorized  by  the  state  to
    51  store, transport, possess and use or to individuals to store, transport,
    52  possess and use;
    53    (ii)  the  sale or use of blank cartridges for a motion picture, tele-
    54  vision program, commercial and all entertainment media,  or  for  signal
    55  purposes in athletic sports, or for dog trials or dog training;

        S. 7888                             5
 
     1    (iii)  the use, storage, transportation or sale or transfer for use of
     2  fireworks and sparkling devices in the preparation for or in  connection
     3  with  motion  pictures, television programs, commercials, and all enter-
     4  tainment media recorded in any current or to  be  designed  format  when

     5  such use, transportation and storage has been appropriately permitted by
     6  the local governmental subdivision having jurisdiction;
     7    (iv) the manufacture or sale of sparkling devices provided they are to
     8  be  shipped  directly  out  of  such city and any such items are sold in
     9  accordance with the provisions of this article; or
    10    (v) except in cities  with  a  population  of  one  million  or  more,
    11  possession of sparkling devices lawfully obtained in a jurisdiction that
    12  did  opt  by  local law pursuant to paragraph (b) of subdivision five of
    13  section 405.00 of this chapter to exclude "sparkling devices"  from  the
    14  definitions of "fireworks" and "dangerous fireworks", for the purpose of

    15  lawful use in another jurisdiction that did opt by local law pursuant to
    16  paragraph  (b)  of subdivision five of section 405.00 of this chapter to
    17  exclude "sparkling devices" from  the  definitions  of  "fireworks"  and
    18  "dangerous fireworks". The superintendent of state police shall annually
    19  publish  a  list  of  those  jurisdictions  that have opted by local law
    20  pursuant to paragraph (b) of subdivision five of section 405.00 of  this
    21  chapter  to  exclude  "sparkling devices" from the definitions of "fire-
    22  works" and "dangerous fireworks".
    23    § 2. Subdivision 5 of section 405.00 of the penal law, as  amended  by
    24  chapter 127 of the laws of 2013, is amended to read as follows:
    25    5. Local ordinances superseded. (a) All local ordinances regulating or

    26  prohibiting  the  display  of  fireworks  are  hereby  superseded by the
    27  provisions of this section. Every city, town or village shall  have  the
    28  power  to  enact  ordinances or local laws regulating or prohibiting the
    29  use, or the storage, transportation or sale for use of fireworks in  the
    30  preparation for or in connection with television broadcasts.
    31    (b)  Further,  no  city or county shall be bound to include "sparkling
    32  device" in the definitions of "fireworks" and "dangerous  fireworks"  in
    33  section  270.00 of this chapter, if such city or county shall so author-
    34  ize the exemption of "sparkling device" by law.  If  any  such  city  or
    35  county  so elects, it and such other local jurisdictions that lie within
    36  its geographical boundaries shall not enact any other local law that  is

    37  inconsistent  with  the provisions of subparagraph (iv) of paragraph (c)
    38  of subdivision one of section 270.00 of this chapter,  nor  to  regulate
    39  sparkling devices in a manner that is in conflict with the provisions of
    40  NFPA 1124, 2006 edition.
    41    § 3. Subdivision 20 of section 156 of the executive law, as renumbered
    42  by  chapter  127 of the laws of 2013, is renumbered subdivision 21 and a
    43  new subdivision 20 is added to read as follows:
    44    20. Register the manufacturers, distributors,  wholesalers,  retailers
    45  and  seasonal  retailers  of  sparkling  devices who wish to do business
    46  within the state.
    47    § 4. The executive law is amended by adding a  new  section  156-h  to
    48  read as follows:
    49    § 156-h. Registration and fees for manufacturers, distributors, whole-

    50  salers,  and  retailers of sparkling devices. 1. Definitions. As used in
    51  this section, the term:
    52    (a) "Distributor" means any person or entity engaged in  the  business
    53  of selling sparkling devices to wholesalers, specialty retailers, perma-
    54  nent retailers or temporary seasonal retailers for resale.
    55    (b)  "Manufacturer" means any person or entity engaged in the manufac-
    56  ture or construction of sparkling devices.

        S. 7888                             6
 
     1    (c) "Specialty retailer" means any person or entity who,  at  a  fixed
     2  place  of  business,  is  engaged solely in selling sparkling devices at
     3  retail. For purposes of this section, a  person  or  entity  is  engaged

     4  solely in selling sparkling devices if fifty-one percent or more of such
     5  person's  or  entity's annual gross sales are from the sale of sparkling
     6  devices.
     7    (d) "Permanent retailer" means any person or entity who,  at  a  fixed
     8  place of business, is engaged in selling sparkling devices at retail.
     9    (e) "Sparkling devices" means any item defined in subparagraph (vi) of
    10  paragraph (a) of subdivision one of section 270.00 of the penal law.
    11    (f) "Temporary seasonal retailer" means any person or entity who, at a
    12  temporary  stand  or  tent, is engaged in selling sparkling devices from
    13  June twentieth through July fifth or from December tenth through January
    14  second of each year at retail.

    15    (g) "Wholesaler" means any person or entity engaged in the business of
    16  selling sparkling devices to specialty retailers, permanent retailers or
    17  temporary seasonal retailers at wholesale.
    18    2. Registration requirements. Any  manufacturer,  distributor,  whole-
    19  saler,  specialty  retailer,  permanent  retailer  or temporary seasonal
    20  retailer of sparkling devices who wishes to do business in this state or
    21  to otherwise sell, ship, or assign for sale its products in  this  state
    22  must register annually with the office of fire prevention and control on
    23  forms  prescribed  by  such  office.  Any  specialty retailer, permanent
    24  retailer or temporary seasonal retailer that sells sparkling devices  at

    25  more  than  one retail location may submit one registration form for all
    26  such locations but must provide the address of each  location  with  the
    27  registration  form;  however, any retailer may submit multiple registra-
    28  tion forms.
    29    3. Registration form. The registration form filed with the  office  of
    30  fire  prevention  and  control  must  be  notarized and must include the
    31  following information: business name; address; telephone  number;  offi-
    32  cers,  if the business is a corporation; and an individual designated as
    33  a contact person.
    34    4. Fees. (a) Each manufacturer, distributor or wholesaler must pay  an
    35  annual  registration  fee to be set by the office of fire prevention and

    36  control not to exceed five thousand  dollars.  Each  specialty  retailer
    37  must  pay  an  annual  registration  fee to be set by such office not to
    38  exceed two thousand five hundred dollars. Each permanent retailer  shall
    39  pay  an  annual  registration fee to be set by such office not to exceed
    40  two hundred dollars for each retail location registered. Each  temporary
    41  seasonal  retailer  must pay a registration fee to be set by such office
    42  not to exceed two hundred fifty dollars per  season.  Each  certificate-
    43  holder  wishing  to have a duplicate certificate issued for one which is
    44  lost or to reflect a change of address shall request such  duplicate  in
    45  writing and shall pay a fee of five dollars.

    46    (b)  Revenue  from  registration  fee  payments  shall be used for the
    47  purposes of implementing firefighter safety  and  training  programs  as
    48  well as registration and testing provisions of this chapter.
    49    (c) No city, municipality or other local jurisdiction shall charge any
    50  fee  or  require any permit whatsoever for the sale and use of sparkling
    51  devices.
    52    5. Record and reports. Each manufacturer, distributor  and  wholesaler
    53  shall  maintain and make available to the state fire administrator, upon
    54  the state fire administrator's reasonable request,  full  and  complete,
    55  true,  and accurate records showing the name and quantity of any sparkl-

        S. 7888                             7
 

     1  ing device produced in, imported to, exported  from,  or  sold  in  this
     2  state.
     3    6.   Rules.  The  state  fire  administrator  shall  promulgate  rules
     4  prescribing registration forms required by this section.
     5    § 5. The general business law is amended by adding a new section 392-j
     6  to read as follows:
     7    § 392-j. Sales of sparkling devices.  1. Sales of sparkling devices as
     8  defined in subparagraph (vi) of paragraph  (a)  of  subdivision  one  of
     9  section 270.00 of the penal law shall be lawful only for business regis-
    10  tered  by  the state under section one hundred fifty-six-h of the execu-
    11  tive law between June first and July  fifth  or  from  December  twenty-
    12  sixth through January second of each year.

    13    2.  Failure  to comply with this section shall be deemed an offense as
    14  defined in subdivision two of section 270.00 of the penal law.
    15    § 6. This act shall take effect on the thirtieth day  after  it  shall
    16  have become a law.
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