70873-3:n:02/04/2005:JRC/th LRS2005-169R2




HB364
By Representatives Black (M) and Starkey
RFD State Government
Rd 1 10-FEB-05


SYNOPSIS:Under existing law, the sale of fireworks is regulated in the State of Alabama.
This bill would authorize the seasonal sale of fireworks in tents that meet certain size requirements and would provide for a seasonal sales permit for tents, would allow for the sale and use of certain DOT deregulated novelty items to be sold and used without a state permit, would provide that permitted fireworks retailers may not operate within structures of a certain size, and would eliminate the sale of bottle-type rockets of a certain size.

A BILL
TO BE ENTITLED
AN ACT

To amend Sections 8-17-210, 8-17-211, 8-17-217, 8-17-220, 8-17-221, and 8-17-226, Code of Alabama 1975, relating to the sale and regulation of fireworks, to authorize the seasonal sale of fireworks in tents that meet certain size requirements and provide for a seasonal sales permit for tents, to allow for the sale and use of certain DOT deregulated novelty items to be sold and used without a state permit, to provide that permitted fireworks retailers may not operate within structures of a certain size, and to eliminate the sale of bottle-type rockets of a certain size.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. Sections 8-17-210, 8-17-211, 8-17-217, 8-17-220, 8-17-221, and 8-17-226, Code of Alabama 1975, are amended to read as follows:

8-17-210.

"As used in this article, the following terms shall have the meanings ascribed to them in this section, unless clearly indicated otherwise:

"(1) DISTRIBUTOR. Any person engaged in the business of making sales of fireworks for resale to all holders of the required Alabama permits who in turn shall resell to any permit holder; or any person who receives, brings, or imports any fireworks of any kind into the State of Alabama, except to a holder of an Alabama manufacturer's or distributor's permit.

"(2) D.O.T. CLASS C COMMON FIREWORKS. All articles of fireworks as are now or hereafter classified as D.O.T. Class C common fireworks in the regulations of the U.S. Department of Transportation for the transportation of explosive and other dangerous articles.

"(3) MANUFACTURER. Any person engaged in the making, manufacture, or construction of fireworks of any kind within the State of Alabama.

"(4) PERMIT. The written authority of the State Fire Marshal issued under the authority of this article.

"(5) PERSON. Includes any corporation, association, copartnership or one or more individuals.

"(6) RETAILER. Any person engaged in the business of making sales of fireworks to consumers within the State of Alabama during a calendar year from January 1 through December 31.

"(7) SALE. An exchange of articles or of fireworks for money, including barter, exchange, gift, or offer thereof, and each such transaction made by any person, whether as principal proprietor, salesman, agent, association, copartnership, or one or more individuals.

"(8) FIREWORKS SEASONS. The dates of June 20 through July 10 and December 15 through January 2 of each year shall be the only periods when seasonal retailers may sell fireworks.

"(9) SEASONAL RETAILER. Any person engaged in the business of making sales of fireworks to consumers within the State of Alabama during the fireworks season(s) only, from permanent buildings, tents, or temporary or moveable stands.

"(10) SPECIAL FIREWORKS. All articles of fireworks that are classified as Class B explosives in the regulations of the U.S. Department of Transportation, including all articles classified as fireworks other than those classified as Class C.

"(11) WHOLESALER. Any person engaged in the business of making sales of fireworks to any other person engaged in the business of making sales at seasonal retail.

8-17-211.

"(a) It shall be unlawful for any person to manufacture, sell, offer for sale, or ship or cause to be shipped into or within the State of Alabama, except as herein provided, any item of fireworks or pyrotechnics for use before a proximate audience, without first having secured the required applicable permit, as a manufacturer, distributor, wholesaler, retailer, or seasonal retailer, from the State Fire Marshal. Possession of a permit is a condition prerequisite to manufacturing, selling or offering for sale, or shipping or causing to be shipped any fireworks or pyrotechnics for use before a proximate audience into or within the State of Alabama, except as herein provided. This provision applies to nonresidents as well as residents of the State of Alabama. Mail orders where consumers purchase any fireworks or pyrotechnics for use before a proximate audience through the mail or receive any fireworks or pyrotechnics for use before a proximate audience in Alabama by mail, parcel service, or other carrier are prohibited. A sales clerk must be on duty to serve consumers at the time of purchase or delivery. All fireworks or pyrotechnics for use before a proximate audience sold and delivered to consumers within the State of Alabama must take place within the State of Alabama and be sold and delivered only by an individual, firm, partnership, or corporation holding the proper Alabama permit and all fireworks or pyrotechnics for use before a proximate audience coming into the state, manufactured, sold, or stored within the state shall be under the supervision of the State Fire Marshal as provided for in this article.

"(b) Prior to engaging in the manufacture or sale within the State of Alabama, or shipment into the State of Alabama, of any fireworks or pyrotechnics for use before a proximate audience, each person making shipment or delivery or receiving any fireworks or pyrotechnics for use before a proximate audience into or within the State of Alabama, must make application on forms secured from the State Fire Marshal for a permit or permits required under this article for each location at which fireworks or pyrotechnics for use before a proximate audience are to be offered for sale.

"(c) A manufacturer's permit issued under this article shall be subject to rules and regulations promulgated by the State Fire Marshal to govern the manufacture of fireworks or pyrotechnics for use before a proximate audience as in the judgment of the State Fire Marshal the public welfare may require.

"(d) The decision of the State Fire Marshal as to what type of permit or permits shall be required of each person shall be final. The State Fire Marshal may deny a permit to an applicant or revoke a permit if the State Fire Marshal has knowledge or reason to believe the safety standards and conditions of this article are not or cannot be met by the applicant. No permit shall be issued to a person under the age of 18 years. All permits shall be for the calendar year or any fraction thereof and shall expire on December 31 of each year, two days of grace shall be allowed holders of permits after expiration thereof. Only one seasonal retailer permit shall be required for a full calendar year and it shall be valid for both fireworks seasons, provided that the building is not moved from the location where it was originally permitted and no substantial structural or environmental changes have occurred. A seasonal retailer permit may be issued after July tenth for the remaining fireworks season of that calendar year. All permits issued must be displayed in their place of business. No permit provided for herein shall be transferable nor shall a person be permitted to operate under a permit issued to any other person or under a permit issued for another location, unless transfer shall have been approved by the State Fire Marshal.

"(e) The State Fire Marshal shall charge for permits issued as follows:

"(1) Manufacturer, two thousand dollars ($2,000).

"(2) Distributor, two thousand dollars ($2,000).

"(3) Wholesaler, seven hundred dollars ($700).

"(4) Retailer, two hundred dollars ($200).

"(5) Seasonal Retailer, two hundred dollars ($200).

"(6) Seasonal Retailer after July 10, one hundred dollars ($100).

"(7) Display, fifty dollars ($50).

"(8) Tents, two hundred dollars ($200).

"(f) Only holders of a retailer or seasonal retailer permit may engage in the retail sale of permitted allowed items as defined in Section 8-17-217 (a) and (b), in any quantity, to consumers.

"(g) Only holders of a retailer or seasonal retailer permit may engage in the retail sale of allowed items in tents.

"(g) (h) A holder of a manufacturer's permit is not required to have any additional permit or permits in order to sell to distributors, wholesalers, retailers, or seasonal retailers.

"(h) (i) A record of all sales by manufacturers, distributors, or wholesalers must be kept showing the names and addresses of purchasers. All fees collected for the permits shall be paid into the Fire Marshal Revolving Fund for the enforcement of this article. The State Fire Marshal may designate a deputy fire marshal as the "fireworks enforcement officer" who shall have the responsibility of directing enforcement of the state fireworks laws.

"(i) (j) The State Fire Marshal is charged with the enforcement of this article and may call upon any state or county or city peace officer for assistance in the enforcement of this article. The fire marshal is not authorized to promulgate rules or regulations in conflict with or that go beyond the scope or intent of this article.

8-17-217.

"(a) It shall be unlawful for an individual, firm, partnership, or corporation to possess, sell, or use within the State of Alabama, or ship into the State of Alabama, except as provided in Section 8-17-216, any pyrotechnics commonly known as "fireworks" other than items now or hereafter classified as Class C common fireworks by the United States Department of Transportation and/or or those items that comply with the construction, chemical composition, and labeling regulations promulgated by the United States Consumer Product Safety Commission and permitted allowed for use by the general public under their regulations.

"(b) Permitted Permissible items designed to produce an audible effect are confined to small ground items which include firecrackers containing not over 50 milligrams of explosive composition and aerial devices containing not over 130 milligrams of explosive composition. Propelling or expelling charge consisting of a mixture of charcoal, sulfur, and potassium nitrate are not considered as designed to produce an audible effect. Bottle-type rockets whose motor is a minimum one-half inch in diameter and a minimum three inches in length, whose stabilizing stick is a minimum 15 inches in length, and whose total pyrotechnic composition does not exceed 20 grams each in weight shall be allowed and considered a permissible item, but no smaller bottle-type rockets shall be allowed as a permissible item to be sold in Alabama but may be stored, sold, or possessed by a holder of a manufacturer, wholesaler, or retailer permit for out-of-state distribution only.

"(c) Items permitted allowed and for which a permit is not required shall include related items not classified by the United States Department of Transportation as common fireworks, but identified under their regulations as trick noisemakers, toy novelties, toy smoke devices and sparklers and shall include toy snakes, snappers, auto burglar alarms, smoke balls, smoke novelty items, and wire sparklers containing not over 100 grams of composition per item. Sparklers containing any chlorate or perchlorate salts may not exceed five grams of composition per item. The sale, possession, storage, and use of allowed items shall be allowed at all times throughout the state.

8-17-220.

Permissible items of fireworks, defined in Section 8-17-217, may be sold at retail to residents of the State of Alabama. The term "fireworks" shall not include permissible items listed in Section 8-17-217 (c), toy paper pistol caps which contain less than twenty-five hundredths grains of explosive compounds, model rockets, emergency signal flares, matches, cone, bottle, tube, and other type serpentine pop-off novelties, trick matches, and cigarette loads, the sale and use of which shall be permitted allowed at all times without a special fireworks permit.

8-17-221.

"(a) Placing, storing, locating, or displaying of fireworks in any window where the sun may shine through glass onto the fireworks so displayed or to permit the presence of lighted cigars, cigarettes, or pipes within 10 feet of where the fireworks are offered for sale is hereby declared unlawful and prohibited. At all places where fireworks are stored or sold, there must be posted signs with the words "FIREWORKS - NO SMOKING" in letters not less than four inches high.

"(b) No fireworks shall be sold at retail at any permanent location where paints, oils, or varnishes are for sale or use unless kept in the original unbroken containers, nor where gasoline or other flammable liquid or gas is used, stored, or sold, if the use, storage, or sale creates an undue hazard to person or property. No fireworks shall be sold at retail from any temporary or moveable stand or tents where paints, oils, or varnishes are for sale or use unless kept in the original unbroken containers, nor within 50 feet of where gasoline or other flammable liquid or gas is used, stored or sold.

"(c) Any fireworks devices that are readily accessible to handling by consumers or purchasers must have their fuses protected in such a manner as to protect against accidental ignition of an item by a spark, cigarette ash, or other ignition source. Safety type thread wrapped and coated fuses shall be exempt from this provision.

"(d) No retail permit shall be issued for the sale of fireworks at retail from tents or from or in a motor vehicle or from a trailer towed by a motor vehicle. A permit may be issued for the sale of fireworks from a modular or mobile building when the structure is eight feet or more in width and thirty-two feet or more in length, from which all wheels have been removed and the structure placed on a non-mobile foundation. No permit shall be issued to an applicant for a previously unpermitted location, until the premises where fireworks are to be stored or sold have been inspected by the State Fire Marshal or his or her designated representative and it shall have been determined that such building and facilities within the building and facilities for storage meet reasonable safety standards for the storage and sale of permissible fireworks. Inspection is not required for renewal of permits at the same location to be operated by the same owner unless there has occurred substantial structure or environmental changes. A seasonal retailer permit may be issued for the sale of fireworks from a tent, the size of which shall not be less than 400 square feet and which shall be taken down after each fireworks season. For purposes of this subsection, a tent shall mean a freestanding temporary structure, the covering or cladding of which is comprised of a pliable nonrigid membrane and the support of which is achieved by mechanical means such as poles, ropes, anchoring, and aluminum framing. All materials used as a tent covering or cladding shall be certified as being flame retardant, and a copy of the manufacturer's certification of flame resistance for the material shall accompany each permit application for locations where the retail sale of fireworks takes place from a tent.

"(e) No retailer permit shall be issued for the sale of fireworks at retail in a permanent facility greater than 12,000 square feet in size. Retailer permits shall only be issued for locations found to be in compliance with the National Fire Protection Association Standard 1124, Code for the Manufacture, Transportation, Storage and Retail Sales of Fireworks and Pyrotechnic Articles, 2003 Edition.

8-17-226.

"This article shall in no wise way affect the validity of any city ordinance further restricting the sale or use of fireworks."

Section 2. This act shall become effective immediately following its passage and approval by the Governor, or its otherwise becoming law.


Fireworks
Business and Commerce
Sales
Transportation Department
Code Amended