HB112 By Representative Brown (C) RFD Economic Development and Tourism Rd 1 04-FEB-20

SYNOPSIS: Under existing law, the State Fire Marshal collects certain fees for issuing permits in the regulation of the manufacturing, sale, and display of fireworks, including those defined as common fireworks, and for the use of pyrotechnics before a proximate audience, all fees so collected are paid into the State Fire Marshal's Fund for the enforcement of those laws, and these fees are subject to being increased according to changes in the Consumer Price Index.

This bill would redesignate common fireworks as consumer fireworks and would provide for a specific designation of non-aerial ground devices and novelties as defined under federal law. The bill would specify that a city and county ordinance could not conflict with this act for these items.

This bill would increase the fees collected by the State Fire Marshal for issuing permits in the regulation of the manufacturing, sale, and display of fireworks and for the use of pyrotechnics before a proximate audience.

This bill would also provide for a semi-annual transfer of five percent of the permit fees collected by the State Fire Marshal in the regulation of fireworks and pyrotechnics to the Alabama Firefighters Annuity and Benefit Fund.

This bill would also specify that the fees may be increased at certain intervals according to increases in the Consumer Price Index.

A BILL TO BE ENTITLED AN ACT

Relating to fireworks and pyrotechnics; to amend Sections 8-17-210, 8-17-211, 8-17-216.1, 8-17-217, 8-17-218, 8-17-219, 8-17-220, 8-17-225, 8-17-226, 8-17-255, 34-33-11, and 34-33A-12, Code of Alabama 1975; and to add Section 36-19-31 to the Code of Alabama 1975; to redesignate common fireworks as consumer fireworks and to provide for the regulation of consumer fireworks; to specify that city and county ordinances may not conflict with the regulation of certain non-aerial ground devices and novelty fireworks as defined in this act; to increase the fees collected by the State Fire Marshal for issuing permits in the regulation of the manufacturing, sale, and display of fireworks and for the use of pyrotechnics before a proximate audience; to further provide for the operation of the State Fire Marshal's Fund and to provide retroactive effect; to provide for a transfer of five percent of the permit fees collected by the State Fire Marshal in the regulation of fireworks and pyrotechnics to the Alabama Firefighters Annuity and Benefit Fund; and to specify that the fees may be increased at certain intervals according to increases in the Consumer Price Index.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:Section 1. Sections 8-17-210, 8-17-211, 8-17-216.1, 8-17-217, 8-17-218, 8-17-219, 8-17-220, 8-17-225, 8-17-226, 8-17-255, 34-33-11, and 34-33A-12, 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) AERIAL DEVICES. Any type of D.O.T. Class C Consumer Fireworks listed in the APA 87-1, Sections 3.1.2 and 3.5.

"(2) ANNUAL RETAILER. Any person engaged in the business of making sales of fireworks to consumers within this state throughout the entire calendar year from January 1 through December 31.

"(3) APA 87-1. The 2001 American Pyrotechnics Standard for Construction and Approval for Transportation of Fireworks, Novelties, and Theatrical Pyrotechnics.

"(4) AUDIBLE GROUND DEVICES. Any type of D.O.T. Class C Consumer Firework listed in APA 87-1, Section 3.1.3.

"(1)(5) 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)(6) D.O.T. CLASS C COMMON CONSUMER FIREWORKS. All articles of fireworks as are now or hereafter classified as D.O.T. Class C common 1.4G Consumer fireworks in the regulations of the U.S. Department of Transportation for the transportation of explosive and other dangerous articles, including aerial devices, audible ground devices, non-aerial ground devices, and novelties.

"(8)(7) 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.

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

"(9) NFPA 1123. The National Fire Protection Association Code for Fireworks Display, as adopted by the State Fire Marshal.

"(10) NFPA 1124. The National Fire Protection Association Code for the Manufacture, Trasportation, Storage, and Retail Sales of Fireworks and Pyrotechnic Articles, as adopted in 2006.

"(11) NON-AERIAL GROUND DEVICES. Any type of D.O.T. Class C Consumer Firework that is a ground-based or handheld sparkling device, including items listed in APA 87-1, Sections 3.1.1 and 3.5.

"(12) NOVELTIES. Any device listed in APA 87-1, Section 3.2, including, without limitation, the following:

"a. Party poppers.

"b. Snappers.

"c. Toy smoke devices.

"d. Snake, glow worms.

"e. Wire sparklers, dipped sticks.

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

"(5)(14) 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)(15) SALE. An exchange of articles or 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.

"(9)(16) 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 or temporary or moveable stands.

"(10)(17) SPECIAL FIREWORKS. All articles of fireworks that are classified as Class B explosives 1.3G fireworks in the regulations of the U.S. Department of Transportation, including all articles classified as fireworks other than those classified as Class C.

"(11)(18) 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, annual 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. The holder of an annual retailer permit shall not be required to obtain a seasonal retailer permit.

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

"(1) Manufacturer, two thousand dollars ($2,000) two thousand seven hundred dollars ($2,700).

"(2) Distributor, two thousand seven hundred dollars ($2,000) ($2,700).

"(3) Wholesaler, seven hundred one thousand dollars ($700) ($1,000).

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

"a. Of aerial devices, non-aerial ground devices, audible ground devices, and novelties, two hundred fifty dollars ($250) per location.

"b. Of non-aerial ground devices and novelties, one hundred dollars ($100) per location.

"c. Of novelties, twenty-five dollars ($25) per location.

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

"a. Of aerial devices, non-aerial devices, audible ground devices, and novelties, two hundred dollars ($200) per location.

"b. Of non-aerial devices and novelties, fifty dollars ($50) per location.

"(6) Seasonal Retailer after July 10, one hundred dollars ($100) one-half the permit fee indicated in subdivision (5).

"(7) Display, fifty dollars ($50) application filed at least 10 business days before display date, seventy dollars ($70).

"(8) Display, application filed less than 10 business days before display date, one hundred forty dollars ($140).

"(f) Only holders of a an annual retailer or seasonal retailer permit may engage in the retail sale of permitted items as defined in Section 8-17-217 aerial devices, non-aerial ground devices, audible ground devices, and novelties, in any quantity, to consumers.

"(g) 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) 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 State Fire Marshal Marshal's 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) 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.

"(j) Every five years, the State Fire Marshal may increase the fees by the percentage increase in the Consumer Price Index for all urban consumers as published by the U.S. Department of Labor, Bureau of Labor Statistics from the end of December 2020, to the end of the month preceding the month in which the fee increase is to be effective, rounded down to the nearest dollar. The increase may not exceed two percent per year.

§8-17-216.1.

"(a) The use of pyrotechnics before a proximate audience shall comply with the requirements set out in the latest edition of the National Fire Protection Association's Standard for the Use of Pyrotechnics Before a Proximate Audience (NFPA 1126) as shall be adopted by the State Fire Marshal. For purposes of this article, the term "proximate audience" shall mean an indoor audience closer to pyrotechnic devices than permitted by the National Fire Protection Association's Code for Fireworks Display (NFPA 1123).

"(b) No person shall use pyrotechnics before a proximate audience without first obtaining a permit therefor from the State Fire Marshal. An application for a permit for the use of pyrotechnics at an event with a proximate audience shall be filed with the State Fire Marshal not less than 10 days prior to the planned date of the event. The State Fire Marshal may accept an application for a permit under this section less than 10 days before the planned date of the event if accompanied by a fee of double the amount otherwise required.

"(c) The request for a permit under subsection (b) shall be in the form and manner prescribed by the State Fire Marshal. The permit shall be in addition to any locally required permit or approval.

"(d) A fee of one hundred fifty dollars ($100) ($150) per event shall be submitted with each application.

"(e) Where more than one event is to take place at the same location during the same calendar date, a separate application shall be filed for each event. The application fee for the second and subsequent events on the same calendar date shall be fifty seventy-five dollars ($50) ($75) per event.

"(f) The State Fire Marshal may prescribe such other and additional requirements associated with the use of pyrotechnics before a proximate audience as are deemed necessary for the safety of property and persons present at the proximate event location.

"(g) All pyrotechnics found at an event with a proximate audience which does not have a permit shall be confiscated and destroyed by the State Fire Marshal or his or her designee.

"(h) All fees collected pursuant to this section shall be paid into the State Fire Marshal Marshal's Revolving Fund for the enforcement of this article.

"(i) Every five years, the State Fire Marshal may increase the fees by the percentage increase in the Consumer Price Index for all urban consumers as published by the U.S. Department of Labor, Bureau of Labor Statistics from the end of December 2020, to the end of the month preceding the month in which the fee increase is to be effective, rounded down to the nearest dollar. The increase may not exceed two percent per year.

§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 consumer fireworks by the United States Department of Transportation, including, but not limited to, aerial devices, audible ground devices, non-aerial ground devices, and novelties and/or those items that comply with the construction, chemical composition, and labeling regulations promulgated by the United States Consumer Product Safety Commission and permitted for use by the general public under their regulations.

"(b) Permitted 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.

"(c) Items permitted and for which a permit is required shall include related items not classified by the United States Department of Transportation as common consumer 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.

§8-17-218.

"All items of fireworks which exceed the two grain limit of D.O.T. Class C common consumer fireworks as to explosive composition, such items being commonly referred to as "illegal ground salutes" designed to produce an audible effect, are expressly prohibited from shipment into, manufacture, possession, sale, and use within the State of Alabama for any purpose. This subsection section shall not affect display fireworks authorized by this article,.

§8-17-219.

"No permissible article of fireworks or related items defined in Section 8-17-217 shall be sold, offered for sale or possessed within the state or used within the state, except as provided in Section 8-17-216 unless it shall be properly named to conform to the nomenclature of Section 8-17-217. Items must be identified on the shipping cases and by imprinting on the article or retail sales container or unit "D.O.T. Class C Common Consumer Fireworks" or other appropriate classification or identification as may be applicable or required by any federal agency having jurisdiction over fireworks on related items; such imprint to be of sufficient size and so positioned as to be readily recognized by law enforcement authorities and the general public.

§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 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 at all times without a special fireworks permit.

§8-17-225.

"The State Fire Marshal shall seize as contraband any fireworks other than the permitted "Class C Common Consumer Fireworks" and related items defined in Section 8-17-217 or "special fireworks" for public displays as provided in Section 8-17-216, which are sold, displayed, used, or possessed in violation of this article. The fire marshall is authorized to State Fire Marshal may destroy any illegal fireworks so seized.

§8-17-226.

"(a) This article shall in no wise affect the validity of any city ordinance further restricting the sale or use of fireworks aerial devices and audible ground devices, including the authority to adopt ordinances related to aerial devices and audible ground devices in accordance with Section 11-45-9.1.

"(b) No city or county may enact any ordinance or local law in conflict with this chapter or related to the transportation, storage, retail sale, posession, or use of non-aerial ground devices or novelties.

"(c) Nothing in this section shall be construed to limit or restrict a municipality from including the revenue derived from the devices listed above from the gross receipts calculation used as the basis for a retailer's existing business license as provided in Section 11-51-90.

§8-17-255.

"All sums received through the payment of fees, the recovery of civil penalties, grants, and appropriations by the Legislature shall be deposited in the State Treasury and credited to the State Fire Marshal's Fund authorized by Section 36-19-31. This fund shall be available to the State Fire Marshal for the operation of the State Fire Marshal's Offices, including expenditure in the administration and enforcement of this article, Article 8, Article 8A, and Article 10, training, and research programs, and to support fire safety and prevention programs. Provided, however, that no funds shall be withdrawn or expended except as budgeted and allocated according to Sections 41-4-80 to 41-4-96 and Sections 41-19-1 to 41-19-12, inclusive, and only in amounts as stipulated in the general appropriations bills or other appropriations bills. Any unencumbered and any unexpended balance of this fund remaining at the end of any fiscal year shall not lapse or revert to the General Fund, but shall be carried forward for the purposes of this article until expended.

§34-33-11.

"All funds collected pursuant to this chapter shall be deposited in the State Treasury to the credit of the State Fire Marshal's Fund authorized by Section 24-5-10 36-19-31. The State Fire Marshal shall be authorized to expend moneys from the State Fire Marshal's Fund for the administration and enforcement of this chapter. The State Fire Marshal shall be allowed to receive grants and donations from associations, firms, or individuals who are interested in the upgrading and quality of fire protection sprinkler systems.

§34-33A-12.

"All funds collected pursuant to this chapter shall be deposited in the State Treasury to the credit of the State Fire Marshal's Fund authorized in Section 24-5-10 36-19-31. The State Fire Marshal may expend moneys from the State Fire Marshal's Fund for the administration and enforcement of this chapter. The State Fire Marshal may receive grants and donations from associations, firms, or individuals who are interested in the upgrading and quality of fire alarm systems in compliance with Alabama state ethics laws."

Section 2. Section 36-19-31 is added to the Code of Alabama 1975, to read as follows:

§36-19-31.

(a) There is established in the State Treasury a special fund to be known as the State Fire Marshal's Fund. All sums received by the State Fire Marshal's Office through the payment of fees, the recovery of civil penalties, grants, and appropriations by the Legislature, including funds received pursuant to Article 8, Article 8A, Article 9, and Article 10 of Chapter 17 of Title 8, and pursuant to Chapter 33 and Chapter 33A of Title 34, shall be deposited in the State Fire Marshal's Fund.

(b) The State Fire Marshal's Fund shall be expended for the operation of the State Fire Marshal's Office, including the administration and enforcement of Article 8, Article 8A, Article 9, and Article 10 of Chapter 17 of Title 8, and of Chapter 33 and Chapter 33A of Title 34, for training and research programs, and to support fire safety and prevention programs.

(c) No funds shall be withdrawn or expended from the State Fire Marshal's Fund except as budgeted and allotted according to Sections 41-4-80 to 41-4-96, inclusive, and 41-19-1 to 41-19-12, inclusive, and only in amounts as stipulated in the general appropriations act, or other appropriations act. Any unencumbered and unexpended balance of the fund remaining at the end of any fiscal year shall not lapse or revert to the General Fund but shall be carried forward to the next fiscal year.

Section 3. On a semiannual basis, the State Fire Marshal shall transfer from the State Fire Marshal's Fund to the Alabama Firefighters Annuity and Benefit Fund established pursuant to Section 36-21-185, Code of Alabama 1975, an amount equal to five percent of the fees collected by the State Fire Marshal during the previous six months pursuant to Sections 8-17-211 and 8-17-216.1, Code of Alabama 1975, as currently provided or as those fees may be hereafter adjusted.

Section 4. The deposit of any funds in the State Fire Marshal's Fund and the expenditure of any funds from the State Fire Marshal's Fund prior to the effective date of this act are ratified and confirmed.

Section 5. This act shall become effective June 1, 2020, upon its passage and approval by the Governor, or its otherwise becoming law.

Fireworks

Fire Marshal

Insurance Department

Business and Commerce

Counties

Municipalities

Firefighters Annuity and Benefit Fund

Code Added

Code Amended