May 5, 2010, Introduced by Rep. Moore and referred to the Committee on Regulatory Reform.
A bill to revise, consolidate, and codify the laws relating to
fireworks; to regulate the purchase, possession, sale, and use of
fireworks; to establish the fireworks safety fund; to provide for
the fireworks safety fee; to prescribe the transfer of funds; to
provide for the expenditure of funds; to prescribe the powers and
duties of certain state agencies; to provide for penalties and
remedies; and to repeal acts and parts of acts.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 1. This act shall be known and may be cited as the
"Michigan fireworks safety act".
Sec. 2. As used in this act:
(a) "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.
(b) "Alcoholic liquor" means any liquid or compound, whether
or not medicated, proprietary, or patented, and by whatever name
called, containing any amount of alcohol, including any liquid or
compound described in section 105(3) of the Michigan liquor control
code of 1998, 1998 PA 58, MCL 436.1105.
(c) "APA standard 87-1" means the 2001 APA standard 87-1
published by the American pyrotechnics association of Bethesda,
Maryland.
(d) "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.
(e) "Bureau" means the bureau of fire services created under
section 1b of the fire prevention code, 1941 PA 207, MCL 29.1b.
(f) "CFRSF" or "consumer fireworks retail sales facility"
means any of the following:
(i) A permanent building or structure that is used for the
retail display and sale of consumer fireworks to the public.
(ii) A temporary building or structure, including a stand,
tent, canopy, or membrane structure that is used primarily for the
retail display and sale of consumer fireworks to the public, if the
stand, tent, canopy, or membrane structure complies with NFPA 101
and 102, as applicable.
(g) "Consumer fireworks" means small fireworks devices that
are designed to produce visible effects by combustion and that
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 and that are
listed in APA standard 87-1 3.1.1, 3.1.2, and 3.5.
(h) "Consumer fireworks certificate" or "certificate" is a
certificate issued under section 5.
(i) "Display fireworks" means large fireworks designed
primarily to produce visible or audible effects by combustion,
deflagration, or detonation and includes, but is not limited to,
salutes containing more than 2 grains (130 milligrams) of explosive
materials, aerial shells containing more than 40 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 and includes fused set pieces containing
components that exceed 50 milligrams of salute powder.
(j) "Distributor" means a person who sells fireworks to
wholesalers and retailers for resale.
(k) "Explosive composition" means a chemical or mixture of
chemicals that produces an audible effect by deflagration or
detonation when ignited.
(l) "Firework" or "fireworks" means any composition or device,
except for a starting pistol, a flare gun, or a flare, 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.
(m) "Interstate wholesaler" means a person who is engaged in
interstate commerce selling fireworks.
(n) "Low-grade fireworks" means 1 or more of the following:
(i) Ground and handheld sparkling devices as that phrase is
defined under APA standard 87-1 3.1.1 and 3.5
(ii) Novelties as defined under APA standard 87-1 3.2.
(iii) Toy caps as defined under APA standard 87-1 3.3.
(o) "Local unit of government" means a city, municipality,
township, village, or county.
(p) "Manufacturer" means a person engaged in the manufacture
of fireworks.
(q) "Minor" means an individual who is under 18 years of age.
(r) "NFPA" means the national fire protection association
headquartered at 1 Batterymarch Park, Quincy, MA.
(s) "NFPA 101" means the "Life Safety Code", 2009 edition,
developed by NFPA.
(t) "NFPA 102" means the "Standard for Grandstands, Folding
and Telescopic Seating, Tents, and Membrane Structures", 2006
edition, developed by NFPA.
(u) "NFPA 1123" means the code for fireworks display, 2006
edition, developed by NFPA.
(v) "NFPA 1124" means the code for the manufacture,
transportation, storage, and retail sales of fireworks and
pyrotechnic articles, 2006 edition, developed by NFPA.
(w) "NFPA 1126" means the standard for the use of pyrotechnics
before a proximate audience, 2006 edition, developed by NFPA.
(x) "Permanent building or structure" is a building or
structure that satisfies all of the following requirements:
(i) It is affixed to the foundation on a site.
(ii) It has fixed utility connections.
(iii) It is intended to remain on the site for more than 180
days.
(iv) It complies with all applicable building codes and the
fire protection code, 1941 PA 207, MCL 29.1 to 29.33.
(y) "Person" means an individual, an association, an
organization, a limited liability company, or a corporation.
(z) "Pyrotechnic composition" means a mixture of chemicals
that produces a visible or audible effect by combustion rather than
deflagration or detonation, and that will not explode upon ignition
unless severely confined.
(aa) "Retailer" means a person who purchases consumer
fireworks and low-grade fireworks for resale to consumers.
(bb) "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.
(cc) "State fire marshal" means the state fire marshal
appointed under section 1b of the fire prevention code, 1941 PA
207, MCL 29.1b.
(dd) "Wholesaler" means any person who sells consumer
fireworks and low-grade fireworks 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.
Sec. 3. This act does not prohibit any of the following:
(a) A wholesaler, retailer, manufacturer, importer, or
distributor from the sale, storage, transportation, and
distribution of consumer fireworks.
(b) The use of fireworks by railroads or other transportation
agencies for signal purposes or illumination.
(c) The use of agricultural or wildlife fireworks.
(d) The sale or use of blank cartridges for any of the
following:
(i) A show or play.
(ii) Signal or ceremonial purposes in athletics or sports.
(iii) Use by military organizations.
(e) 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.
(f) Interstate wholesalers from the sale, storage, use,
transportation, or distribution of fireworks.
Sec. 4. A local unit of government shall not enact or enforce
an ordinance or regulation pertaining to or in any manner
regulating the sale, storage, transportation, or distribution of
fireworks regulated under this act.
Sec. 5. (1) A retailer shall not sell consumer fireworks or
low-grade fireworks unless the retailer annually obtains and
maintains a consumer fireworks certificate from the bureau as
provided in this section for each location from which consumer
fireworks or low-grade fireworks are to be sold.
(2) An application for a consumer fireworks certificate under
this section shall meet all of the following requirements:
(a) The application lists the name and address of each
location from which consumer fireworks are to be sold.
(b) Except as provided in subsection (3), the application
includes a registration fee for each building or structure as
follows:
(i) For the sale of consumer fireworks from a CFRSF that is a
permanent building or structure, $3,500.00.
(ii) For the sale of consumer fireworks from a CFRSF that is a
temporary building or structure, $1,000.00.
(iii) For the sale of low-grade fireworks from a CFRSF that is a
permanent building or structure, $500.00.
(iv) For the sale of low-grade fireworks from a CFRSF that is a
temporary building or structure, $250.00.
(3) A nonprofit organization is exempt from paying a fee under
subsection (2). As used in this subsection, "nonprofit
organization" means an organization or corporation that is exempt
from taxation under section 501(c)(3) of the internal revenue code
of 1986.
(4) A shipping company shall not ship consumer fireworks or
low-grade fireworks into this state unless it first obtains and
maintains a consumer fireworks certificate under this section and
pays the $3,500.00 registration fee.
(5) Not more than 30 days after an application is submitted to
the bureau under this section, the bureau shall issue or deny
issuance of a consumer fireworks certificate to the retailer or
out-of-state shipper and, if issuance is denied, shall indicate to
the applicant the reason for denial.
(6) If the bureau denies issuance of a consumer fireworks
certificate under this section, the applicant may cure any defect
of the application within 20 days after the denial without paying
an additional fee. The bureau shall not unreasonably delay or deny
an application under this section.
(7) A retailer shall not sell consumer fireworks at a location
for which a consumer fireworks certificate has not been issued.
(8) A retailer who violates subsection (1) or (7) is guilty of
a misdemeanor punishable by imprisonment for not more than 2 years
or a fine of not more than $5,000.00 for each day the violation
continues, or both.
(9) A shipping company that violates subsection (4) is
responsible for a state civil infraction and may be ordered to pay
a civil fine of not more than $1,000.00 for each shipment made
without complying with subsection (4).
(10) The application fees and registration fees collected
under this section shall be deposited in the fireworks safety fund
created under section 14.
Sec. 6. (1) A retailer shall only sell consumer fireworks from
a CFRSF that complies with the requirements of this act and with
the requirements of all of the following that are not in conflict
with the provisions of this act:
(a) Chapter 7 of NFPA 1124.
(b) NFPA 101.
(c) NFPA 102.
(2) A retailer who violates this section is liable for a civil
fine of not more than $2,500.00 for each violation.
Sec. 7. (1) Low-grade fireworks shall only be sold from a
CFRSF or from another permanent building or structure.
(2) All low-grade fireworks sold in a permanent building or
structure other than a CFRSF shall satisfy the minimum standards of
the United States consumer product safety commission and shall be
tested and certified as described in section 9(b).
(3) Smoking shall not be permitted in a permanent building or
structure where low-grade fireworks are sold.
(4) The explosive content of each individual consumer firework
item other than a low-grade firework shall be listed on each item.
A person or retailer that violates this subsection is guilty of a
misdemeanor punishable by imprisonment for not more than 30 days or
a fine of $1,000.00, or both.
(5) A CFRSF that is a tent shall not be used to sell fireworks
for more than 60 days in a calendar year.
Sec. 8. Fireworks that are manufactured and shipped directly
out of state do not require a permit for sale, possession, or
transportation. However, this exception to the permit requirement
applies only to fireworks transported by commercial carrier, and
does not apply to household purchases by individual users. A signed
statement that the purchaser will transport the fireworks out of
state is insufficient to qualify for a permit exception under this
section. This section does not apply if its application is contrary
to federal law.
Sec. 9. A consumer fireworks retail sales facility operator
shall comply with the following criteria:
(a) There shall be not less than 1 uniformed security guard on
duty during all business hours at a CFRSF. The uniformed security
guard shall be licensed under the private security business and
security alarm act, 1968 PA 330, MCL 338.1051 to 338.1083.
(b) All consumer fireworks products sold from a CFRSF shall
satisfy the minimum standards of the United States consumer product
safety commission and shall be tested, or certified, or both tested
and certified by a third-party testing agency recognized by the
United States consumer product safety commission.
(c) Smoking and igniting a tobacco product, a lighter, or any
other flame-producing devices shall not be permitted in a CFRSF or
within 50 feet of a CFRSF. A person who violates this subdivision
is guilty of a misdemeanor punishable by imprisonment for not more
than 1 year or a fine of not more than $1,000.00, or both. Signage
stating this no-smoking prohibition and its associated penalties
shall be erected and shall be of a number and type and placed in a
proximity as determined by rule promulgated under the fire
prevention code, 1941 PA 207, MCL 29.1 to 29.33.
(d) An individual shall be not less than 16 years of age to
sell fireworks in a CFRSF.
(e) An individual who has been convicted of or pled guilty to
a felony shall not be permitted to hold any interest in or be
employed by a business licensed in this state to sell consumer
fireworks or low-grade fireworks, or both. An individual's
fingerprints and criminal history shall be checked prior to
employment.
(f) All CFRSFs shall be inspected by a certified fire
inspector before initial certification under this act and
thereafter at least annually before the prime fireworks sales
season.
(g) Each purchaser of consumer fireworks or low-grade
fireworks, or both, shall receive, at the time of sale, a consumer
fireworks safety brochure approved by the state fire marshal.
Sec. 10. A minor shall not purchase consumer fireworks or low-
grade fireworks.
Sec. 11. (1) A user fee, known as the fireworks safety fee, is
imposed on retail transactions made in this state for consumer
fireworks and low-grade fireworks as provided in section 12.
(2) 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 act, shall pay the fireworks safety fee to the retailer as a
separate added amount to the consideration in the transaction. The
retailer shall collect the fireworks safety fee as an agent for the
state.
(3) The fireworks safety fee shall be deposited in the
fireworks safety fund as provided in section 14.
Sec. 12. (1) The fireworks safety fee is 10% of the gross
retail income from consumer fireworks and low-grade fireworks
received by a retail merchant in a retail unitary transaction of
fireworks.
(2) If the fireworks safety fee calculated under subsection
(1) results in a fraction of 1/2 cent or more, the amount of the
fireworks safety fee shall be rounded to the next additional cent.
Sec. 13. A retailer has a duty to remit the fireworks safety
fee calculated under section 12 to the department of treasury of
this state, holds the fireworks safety fees collected in trust for
the state until remitted to the state, and is personally liable for
the payment of the fireworks safety fee money to this state.
Sec. 14. (1) The fireworks safety fund is created within the
state treasury.
(2) The state treasurer may receive money or other assets from
any source for deposit into the fireworks safety fund. The state
treasurer shall direct the investment of the fireworks safety fund.
The state treasurer shall credit to the fireworks safety fund
interest and earnings from fund investments.
(3) Money in the fireworks safety fund at the close of the
fiscal year shall remain in the fireworks safety fund and shall not
lapse to the general fund.
(4) The first $4,000,000.00 deposited to the fireworks safety
fund shall be used for firefighter training by cities, counties,
townships, and villages in accordance with the firefighters
training council act, 1966 PA 291, MCL 29.361 to 29.377.
(5) The state fire marshal shall expend the remaining money
from the fireworks safety fund, upon appropriation, only to carry
out the purposes of this act.
Sec. 15. (1) The bureau shall promulgate rules under the
administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to
24.328, to administer this act, including, but not limited to, all
of the following:
(a) Establish fees for permits under subdivision (c).
(b) Create uniform applications and other forms for
dissemination to and use by local units of government under this
act.
(c) Establish the criteria to be used by local units of
government and fire chiefs in deciding whether to grant or deny
permits or certificates under this act.
(d) Procedures for the collection of application fees and
fireworks safety fees.
(e) Enforcement of regulatory duties.
(f) Plan for the enforcement of age limitations.
(g) Subject to section 16, delegate authority and
responsibility to local fire officials as it considers necessary to
enforce this act under section 2b of the fire prevention code, 1941
PA 207, MCL 29.2b.
(2) Rules promulgated under this section shall provide that an
application for a permit under subsection (1)(c) shall include, at
a minimum, all of the following:
(a) The name of the operator who will detonate the display
fireworks or special effects.
(b) A brief summary of the operator's experience sufficient to
establish that the operator is competent to officiate the public
display of fireworks and detonate the display fireworks or special
effects.
(c) The application fee as determined by the bureau.
(d) Proof that the applicant carries not less than
$1,000,000.00 of liability insurance.
(3) An application for a permit under subsection (1)(c) shall
be received, along with the applicable fee, not less than 30 days
before the public display of fireworks is to take place.
(4) 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
act:
(a) NFPA 1123.
(b) NFPA 1124.
(c) NFPA 1126.
(5) An NFPA standard does not apply if it conflicts with a
provision of this act.
(6) An appeal from the denial of a permit or certificate under
this act shall be to the state fire safety board created under
section 3b of the fire safety code, 1941 PA 207, MCL 29.3b.
Sec. 16. (1) If authority and responsibility are transferred
to local fire officials under section 2b of the fire prevention
code, 1941 PA 207, MCL 29.2b, funding to perform the delegated
operations shall be transferred to the local unit of government
that performs the operation in a ratio of 80% local funding: 20%
state funding.
(2) The state fire marshal's office shall pay the funds to the
local units of government to the extent described in subsection
(1).
(3) The bureau shall enter into a contract with local fire
officials performing enforcement of this act. The contract shall
clearly state the authority and responsibilities delegated to the
local fire officials for enforcing this act.
Sec. 17. A person who has 1 or more convictions for violating
this act shall not officiate, or be granted a permit to officiate,
a public display of fireworks for at least 1 year after his or her
latest conviction for a violation of this act.
Sec. 18. (1) 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).
(2) As used in this section:
(a) "Division 1.3 explosive" means that term as defined in 49
CFR 173.50.
(b) "Division 1.4 explosive" means that term as defined in 49
CFR 173.50.
(c) "New explosive" means that term as defined in 49 CFR
173.56.
Sec. 19. The state fire marshal shall create and maintain, or
cause to be created and maintained, an internet website that has as
its purpose the protection of the residents of this state who
purchase, use, or transport fireworks. The website shall maintain a
list of every person or entity that is issued a consumer fireworks
certificate.
Sec. 20. (1) A person shall 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 is
responsible for a state civil infraction and may be ordered to pay
a civil fine of not more than $500.00. A person who commits a
second or subsequent violation of this subsection within 5 years of
a prior violation of this subsection is guilty of a misdemeanor
punishable by imprisonment for not more than 30 days or a fine of
not more than $1,000.00, or both.
(2) A minor shall not possess, purchase, or offer for sale
consumer fireworks or low-grade fireworks, except as provided in
section 9(d). Except as otherwise provided in this subsection, a
person who violates this subsection is responsible for a state
civil infraction and may be ordered to pay a civil fine of not more
than $500.00 for each day that the violation occurred.
(3) The parent of a minor who knows or should know that the
minor is violating subsection (2) is responsible for a state civil
infraction and may be ordered to pay a civil fine of not more than
$500.00.
(4) Except as otherwise provided in this subsection, a person
shall not ignite, discharge, or use consumer fireworks after 12
midnight and before 10 a.m. However, on a legal holiday, a person
shall not ignite, discharge, or use consumer fireworks between 1
a.m. and 9 a.m. of the same day. A person who violates this
subsection is responsible for a state civil infraction and may be
ordered to pay a civil fine of not more than $500.00 for each day
that the violation occurred. However, a person who commits a second
or subsequent violation of this subsection within 5 years of a
prior violation of this subsection is guilty of a misdemeanor
punishable by imprisonment for not more than 30 days or a fine of
not more than $500.00 for each day that the violation occurred, or
both.
(5) Unless otherwise provided in this act, if a person
violates this act, the person is guilty of a misdemeanor punishable
by imprisonment for not more than 30 days or a fine of not more
than $1,000.00, or both.
(6) If a person violates this act and by that violation causes
damage to the property of another person, the person is guilty of a
misdemeanor punishable by imprisonment for not more than 90 days or
a fine of not more than $5,000.00, or both.
(7) If a person violates this act and by that violation causes
serious impairment of a body function of another person, the person
is guilty of a felony punishable by imprisonment for not more than
1 year or a fine of not more than $5,000.00, or both. As used in
this subsection, "serious impairment of a body function" means that
term as defined in section 58c of the Michigan vehicle code, 1949
PA 300, MCL 257.58c.
(8) If a person violates this act and by that violation causes
the death of another person, the person is guilty of a felony
punishable by imprisonment for not more than 5 years or a fine of
not more than $10,000.00, or both.
(9) A person who fails to collect or remit a fireworks safety
fee as required under section 11 is guilty of a crime as follows:
(a) If the violation is a first offense, a misdemeanor
punishable by imprisonment for not more than 93 days or a fine of
not more than $2,000.00, or both.
(b) If the violation is a second or subsequent offense, a
felony punishable by not more than 2 years imprisonment or a fine
of not more than $5,000.00, or both.
(10) A person shall not have fireworks in his or her immediate
possession if the person is visibly impaired due to the consumption
of alcoholic liquor, a controlled substance, or a combination of
alcoholic liquor and a controlled substance. A person who violates
this subsection is guilty of a misdemeanor punishable by
imprisonment for not more than 90 days or a fine of not more than
$1,000.00, or both.
Sec. 21. In addition to any other penalty imposed for the
violation of this act, a person who is found guilty of a violation
of this act shall be required to reimburse the appropriate
governmental agency for the costs of storing or disposing of seized
fireworks that the governmental agency confiscated for a violation
of this act in the same manner that expenses may be ordered to be
reimbursed under section 1f of chapter IX of the code of criminal
procedure, 1927 PA 175, MCL 769.1f.
Sec. 22. A governmental agency that confiscates fireworks as
the result of a suspected violation of this act shall only be
required to store, inventory, and maintain 1 item of each type of
firework confiscated and, after photographing the remaining items,
may properly discard the remaining items. Evidence of the fireworks
confiscated in compliance with this subsection constitutes
competent evidence in a criminal or civil proceeding arising from a
violation of this act.
Sec. 23. (1) Fireworks are solely regulated under this act.
Fireworks seized for a suspected violation of this act shall be
stored in compliance with this act and rules promulgated under this
act.
(2) Following final disposition of a prosecution under this
act, the seizing agency shall destroy fireworks retained as
evidence in that prosecution. However, if the fireworks are
determined to constitute hazardous waste as that term is defined in
section 11103 of the natural resources and environmental protection
act, 1994 PA 451, MCL 324.11103, the fireworks shall be disposed of
by the department of natural resources and environment as required
under part 111 of the natural resources and environmental
protection act, 1994 PA 451, MCL 324.11101 to 324.11304.
Enacting section 1. Chapter XXXIX of the Michigan penal code,
1931 PA 328, MCL 750.243a to 750.243e, is repealed.