BP BHEAD INT S

AN ACT Relating to fireworks, creating new state fireworks regulations, strengthening state fireworks enforcement provisions, requiring all sales to comply with state regulation; amending RCW 70.77.124, 70.77.126, 70.77.131, 70.77.136, 70.77.146, 70.77.180, 70.77.200, 70.77.205, 70.77.250, 70.77.255, 70.77.270, 70.77.280, 70.77.285, 70.77.311, 70.77.315, 70.77.343, 70.77.345, 70.77.375, 70.77.395, 70.77.435, 70.77.440, 70.77.455, and 70.77.555; adding new sections to chapter 70.77 RCW; adding a new section to chapter 42.17 RCW; repealing RCW 70.77.465; prescribing penalties; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. The legislature declares that fireworks, when purchased and used in compliance with this chapter, are legal. The legislature intends that this chapter is regulatory only, and not prohibitory.

Sec. 2. RCW 70.77.124 and 1994 c 133 s 2 are each amended to read as follows:

"City" means any incorporated city or town.

Sec. 3. RCW 70.77.126 and 1984 c 249 s 1 are each amended to read as follows:

"Fireworks" means any composition or device, in a finished state, containing any combustible or explosive substance for the purpose of producing a visible or audible effect by combustion, explosion, deflagration, or detonation, and classified as common or special fireworks by the United States bureau of explosives or contained in the regulations of the United States department of transportation and designated as U.N. 0335 1.3G or U.N. 0336 1.4G as of the effective date of this act.

Sec. 4. RCW 70.77.131 and 1984 c 249 s 2 are each amended to read as follows:

"Special fireworks" means any fireworks designed primarily for exhibition display by producing visible or audible effects((~~. The term includes (1) fireworks commonly known as skyrockets, missile-type rockets, firecrackers, salutes, and chasers; and (2) fireworks not classified as common fireworks~~)) and classified as such by the United States bureau of explosives or in the regulations of the United States department of transportation and designated as U.N. 0335 1.3G as of the effective date of this act.

Sec. 5. RCW 70.77.136 and 1984 c 249 s 3 are each amended to read as follows:

"Common fireworks" means any fireworks which are designed primarily ((to)) for retail sale to the public during prescribed dates and which produce visual or audible effects ((by)) through combustion and are classified as common fireworks by the United States bureau of explosives or in the regulations of the United States department of transportation and designated as U.N. 0336 1.4G as of the effective date of this act.

((~~(1) The term includes:~~

(a) Ground and hand-held sparkling devices, including items commonly known as dipped sticks, sparklers, cylindrical fountains, cone fountains, illuminating torches, wheels, ground spinners, and flitter sparklers;

~~(b) Smoke devices;~~

~~(c) Fireworks commonly known as helicopters, aerials, spinners, roman candles, mines, and shells;~~

~~(d) Class C explosives classified on January 1, 1984, as common fireworks by the United States department of transportation.~~

~~(2) The term does not include fireworks commonly known as firecrackers, salutes, chasers, skyrockets, and missile-type rockets.~~))

NEW SECTION. Sec. 6. (1) "New fireworks item" means any fireworks initially classified or reclassified as special or common fireworks by the United States bureau of explosives or in the regulations of the United States department of transportation after the effective date of this act.

(2) The director of community, trade, and economic development through the director of fire protection shall classify any new fireworks item in the same manner as the item is classified by the United States bureau of explosives or in the regulations of the United States department of transportation, unless the director of community, trade, and economic development through the director of fire protection determines, stating reasonable grounds, that the item should not be so classified.

NEW SECTION. Sec. 7. No fireworks may be sold or offered for sale to the public as common fireworks which are classified as sky rockets, or missile-type rockets, firecrackers, salutes, or chasers as defined by the United States department of transportation and the federal consumer products safety commission except as provided in RCW 70.77.311.

Sec. 8. RCW 70.77.146 and 1994 c 133 s 1 are each amended to read as follows:

"Special effects" means any 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 ((or)), television ((~~production~~)), theatrical, or opera production, or live entertainment.

Sec. 9. RCW 70.77.180 and 1984 c 249 s 5 are each amended to read as follows:

"Permit" means the official permission granted by a local public agency for the purpose of establishing and maintaining a place within the jurisdiction of the local agency where fireworks are manufactured, constructed, produced, packaged, stored, sold, ((~~exchanged, discharged or used~~)) or exchanged and the official permission granted by a local agency for a public display of fireworks.

Sec. 10. RCW 70.77.200 and 1961 c 228 s 17 are each amended to read as follows:

"Importer" includes any person who for any purpose other than personal use:

(1) Brings fireworks into this state or causes fireworks to be brought into this state;

(2) Procures the delivery or receives shipments of any fireworks into this state; or

(3) Buys or contracts to buy fireworks for shipment into this state.

Sec. 11. RCW 70.77.205 and 1961 c 228 s 18 are each amended to read as follows:

"Manufacturer" includes any person who manufactures, makes, constructs, fabricates, or produces any fireworks article or device but does not include persons who assemble or fabricate sets or mechanical pieces in public displays of fireworks or persons who assemble common fireworks items or sets or packages containing common fireworks items.

Sec. 12. RCW 70.77.250 and 1986 c 266 s 100 are each amended to read as follows:

(1) The director of community, trade, and economic development, through the director of fire protection, shall enforce and administer this chapter.

(2) The director of community, trade, and economic development, through the director of fire protection, shall appoint such deputies and employees as may be necessary and required to carry out the provisions of this chapter.

(3) The director of community, trade, and economic development, through the director of fire protection, may prescribe such rules relating to fireworks as may be necessary for ((~~the protection of life and property and for~~)) the implementation of this chapter.

(4) The director of community, trade, and economic development, through the director of fire protection, shall prescribe such rules as may be necessary to ensure state-wide minimum standards for the enforcement of this chapter. Counties, cities, and towns shall comply with such state rules. Any local rules adopted by local authorities that are more restrictive than state law ((~~as to the types of fireworks that may be sold~~)) shall have an effective date no sooner than one year after their adoption.

(5) The director of community, trade, and economic development, through the director of fire protection, may exercise the necessary police powers to enforce the criminal provisions of this chapter. This grant of police powers does not prevent any other state agency or local government agency having general law enforcement powers from enforcing this chapter within the jurisdiction of the agency or local government.

Sec. 13. RCW 70.77.255 and 1994 c 133 s 4 are each amended to read as follows:

(1) Except as otherwise provided in this chapter, no person, without an appropriate state license or permit may:

(a) Manufacture, import, possess, or sell any fireworks at wholesale or retail for any use;

(b) Make a public display of fireworks; or

(2) Except as authorized by a license and permit under subsection (1)(b) of this section or as provided in RCW 70.77.311, no person may discharge special fireworks at any place.

(3) No person less than eighteen years of age may apply for or receive a license or permit under this chapter.

(4) No license or permit is required for the possession or use of common fireworks lawfully purchased at retail.

Sec. 14. RCW 70.77.270 and 1994 c 133 s 6 are each amended to read as follows:

(1) The governing body of a city or county ((~~may~~)) shall grant ((~~or deny~~)) an application for a permit under RCW 70.77.260(1)((~~. The governing body may place reasonable conditions on any permit it issues~~)) unless the application does not meet the standards under this chapter or the city or county has enacted an ordinance which prohibits retail sales of fireworks and which is consistent with the requirements of RCW 70.77.250(4).

(2) The director of community, trade, and economic development through the director of fire protection shall prescribe uniform, state-wide standards for retail fireworks stands. All cities and counties which allow retail fireworks sales shall comply with these standards.

(3) No retail fireworks permit may be issued to any applicant unless the retail fireworks stand is covered by a commercial general liability insurance policy in an amount of not less than five hundred thousand dollars per event, unless such insurance is not readily available from at least three approved insurance companies. If insurance in this amount is not offered, each fireworks permit shall be covered by a commercial general liability insurance policy in the maximum amount offered by at least three different approved insurance companies.

No wholesaler may knowingly sell or supply fireworks to any retail fireworks stand unless the wholesaler determines that the retail fireworks stand is covered by commercial general liability insurance in the same amount as provided in this subsection.

(4) The requirements for a retail fireworks stand are as follows:

(a) Fireworks sold at retail shall be sold only in temporary roadside stands used at the same time for no other purpose.

(b) A stand shall be either located at least three hundred feet from another fireworks stand or separated from another fireworks stand by a major arterial thoroughfare at least sixty feet in width.

(d) Except as provided in (b) of this subsection, a stand shall be located at least fifty feet from any building but shall not be required to be more than one hundred feet from any structure.

(e) A stand shall be accessible from an improved public street or thoroughfare.

(f) The area around the stand shall be completely free of hazardous accumulations, including but not limited to dry grass, brush, or debris of any nature, for a distance of not less than twenty-five feet on all sides.

(g) Each stand shall have at least two exits located at opposite ends of the stand and both exits shall be unlocked while the stand is occupied.

(h) The stand shall be equipped with at least two approved two and one-half gallon water type or equivalent fire extinguishers.

(i) No heating device of any kind is permitted in the stand.

(j) No smoking signs shall be prominently posted on the stand and in the vicinity of the stand. Smoking shall not be permitted within twenty-five feet of the stand.

(k) Motor vehicles shall not be parked within twenty-five feet of a fireworks stand. No cooking or heating may occur in a motor vehicle located within fifty feet of a fireworks stand.

(l) Fireworks shall not be discharged within fifty feet of a fireworks stand. Signs to this effect shall be posted conspicuously at the stand.

(m) When transporting fireworks from warehouses to stands all federal and state transportation requirements must be met.

(n) No fireworks may be stored outside the stand in any vehicle, trailer, or camper less than twenty-five feet from the stand. If the stand is left unattended during hours of darkness, all fireworks shall be securely locked in the fireworks stand.

(o) Stands shall be under the direct supervision of a competent adult eighteen years of age or older at all times. The location of the closest telephone must be prominently posted within the stand. Overnight sleeping in a stand is prohibited. Any trailer, camper, or vehicle shall be at least twenty-five feet from the stand at all times.

(p) A clear aisle or walkway shall be maintained inside the stand for the full length of the stand.

(5) For purposes of this section, "stand" also includes a tent or building.

Sec. 15. RCW 70.77.280 and 1994 c 133 s 7 are each amended to read as follows:

The local fire official receiving an application for a permit under RCW 70.77.260(2) for a public display of fireworks shall investigate whether the character and location of the display as proposed would be hazardous to property or dangerous to any person. Based on the investigation, the official shall submit a report of findings and a recommendation for or against the issuance of the permit, together with reasons, to the governing body of the city or county. The governing body ((~~may~~)) shall grant ((~~or deny~~)) the application ((~~and may place reasonable conditions on any permit it issues~~)) if it meets the requirements of this chapter and the ordinance of the city or county.

Sec. 16. RCW 70.77.285 and 1984 c 249 s 15 are each amended to read as follows:

Except as provided in RCW 70.77.355, the applicant for a permit under RCW 70.77.260(2) for a public display of fireworks shall include with the application evidence of a bond issued by an authorized surety company. The bond shall be in the amount required by RCW 70.77.295 and shall be conditioned upon the applicant's payment of all damages to persons or property resulting from or caused by such public display of fireworks, or any negligence on the part of the applicant or its agents, servants, employees, or subcontractors in the presentation of the display. Instead of a bond, the applicant may include a certificate of insurance authenticated by the director of community, trade, and economic development, through the director of fire protection, with the advice and consultation of the office of the insurance commissioner, as meeting the requirements of this chapter and evidencing the carrying of appropriate ((~~public~~)) commercial general liability insurance in the amount required by RCW 70.77.295 for the benefit of the person named therein as assured, as evidence of ability to respond in damages. The local fire official receiving the application shall approve the bond or insurance if it meets the requirements of this section.

Sec. 17. RCW 70.77.311 and 1984 c 249 s 19 are each amended to read as follows:

(1) No license is required for the purchase of agricultural and wildlife fireworks by government agencies if:

(a) The agricultural and wildlife fireworks are used for wildlife control or are distributed to farmers, ranchers, or growers through a wildlife management program administered by the United States department of the interior or an equivalent state or local governmental agency;

(b) The distribution is in response to a written application describing the wildlife management problem that requires use of the devices;

(d) It is limited to situations where other means of control are unavailable or inadequate.

(2) No license is required for religious organizations or private organizations or persons to purchase or use common fireworks and such audible ground devices as firecrackers, salutes, and chasers if:

(a) Purchased from a licensed manufacturer, importer, or wholesaler;

(b) For use on prescribed dates and locations;

(d) A permit is obtained from the local fire official. No fee may be charged for this permit.

Sec. 18. RCW 70.77.315 and 1986 c 266 s 102 are each amended to read as follows:

Any person who desires to engage in the manufacture, importation, sale, or use of fireworks, except use as provided in RCW 70.77.255(4) and 70.77.311, shall make a written application to the director of community, trade, and economic development, through the director of fire protection, on forms provided by him or her. Such application shall be accompanied by the annual license fee as prescribed in this chapter.

Sec. 19. RCW 70.77.343 and 1991 c 135 s 6 are each amended to read as follows:

((~~[(1)]~~)) (1) License fees, in addition to the fees in RCW 70.77.340, shall be charged as follows:

Manufacturer....................................... $ 1,500.00

Importer.......................................... 900.00

Wholesaler........................................ 1,000.00

Retailer (for each separate outlet)................... 30.00

Public display for special fireworks.................. 40.00

Pyrotechnic operator for special fireworks............ 5.00

(2) All receipts from the license fees in this section shall be placed in the fire services trust fund and at least seventy-five percent of these receipts shall be used to fund a state-wide public education campaign developed by the department and the licensed fireworks industry emphasizing the safe and responsible use of legal fireworks and the remaining receipts shall be used to fund state-wide enforcement efforts against the sale and use of fireworks that are illegal under this chapter.

Sec. 20. RCW 70.77.345 and 1991 c 135 s 5 are each amended to read as follows:

((~~The~~)) Every license ((~~fees~~)) issued shall be for the calendar year from January 1st to December 31st or for the remaining portion thereof of the calendar year for which the license application is made.

Sec. 21. RCW 70.77.375 and 1986 c 266 s 108 are each amended to read as follows:

The director of community, trade, and economic development, through the director of fire protection, upon reasonable opportunity to be heard, ((~~shall~~)) may revoke any license issued pursuant to this chapter, if he or she finds that:

(1) The licensee has violated any provisions of this chapter or any rule or regulations made by the director of community, trade, and economic development, through the director of fire protection, under and with the authority of this chapter;

(2) The licensee has created or caused a fire nuisance;

(3) Any licensee has failed or refused to file any required reports; or

(4) Any fact or condition exists which, if it had existed at the time of the original application for such license, reasonably would have warranted the director of community, trade, and economic development, through the director of fire protection, in refusing originally to issue such license.

Sec. 22. RCW 70.77.395 and 1984 c 249 s 24 are each amended to read as follows:

((~~Except as provided in RCW 70.77.311, no~~)) It is legal to sell, purchase, use, and discharge common fireworks ((~~shall be sold or discharged~~)) within this state ((~~except~~)) from twelve o'clock noon on the twenty-eighth of June to twelve o'clock noon on the sixth of July of each year and as provided in RCW 70.77.311. However, no common fireworks may be sold or discharged between the hours of eleven o'clock p.m. and nine o'clock a.m., except on July 4th from nine o'clock a.m. through twelve o'clock midnight, and except from six o'clock p.m. on December 31st until one o'clock a.m. on January 1st of the subsequent year.

Sec. 23. RCW 70.77.435 and 1994 c 133 s 11 are each amended to read as follows:

Any fireworks which are illegally sold, offered for sale, used, discharged, possessed or transported in violation of the provisions of this chapter or the rules or regulations of the director of community, trade, and economic development, through the director of fire protection, shall be subject to seizure by the director of community, trade, and economic development, through the director of fire protection, or his or her deputy, or by state agencies or local governments having general law enforcement authority. Any fireworks seized ((~~under this section~~)) by legal process anywhere in the state may be disposed of by the director of community, trade, and economic development, through the director of fire protection, or the agency conducting the seizure, by summary destruction at any time subsequent to thirty days from such seizure or ten days from the final termination of proceedings under the provisions of RCW 70.77.440, whichever is later.

Sec. 24. RCW 70.77.440 and 1994 c 133 s 12 are each amended to read as follows:

(1) ((Any person whose fireworks are seized under the provisions of RCW 70.77.435 may within ten days after such seizure petition the agency conducting the seizure to return the fireworks seized upon the ground that such fireworks were illegally or erroneously seized. Any petition filed hereunder shall be considered by the authority conducting the seizure within fifteen days after filing and an oral hearing granted the petitioner, if requested. Hearings shall be conducted in accordance with state law or chapter 34.05 RCW. Notice of the decision of the authority conducting the hearing shall be served upon the petitioner. The authority conducting the hearing may order the fireworks seized under this chapter disposed of or returned to the petitioner if illegally or erroneously seized. The determination of the authority conducting the hearing is final unless within sixty days an action is commenced in a court of competent jurisdiction in the state of Washington for the recovery of the fireworks seized under this chapter.

(2) If the fireworks are not returned to the petitioner or destroyed pursuant to RCW 70.77.435, the director of community, trade, and economic development, through the director of fire protection, or the agency conducting the seizure may sell confiscated common fireworks, special fireworks, and chemicals used to make fireworks, that are legal for use and possession under this chapter, to wholesalers or manufacturers, authorized to possess and use such fireworks or chemicals under a license issued by the director of community, trade, and economic development, through the director of fire protection.)) In the event of seizure under RCW 70.77.435, proceedings for forfeiture shall be deemed commenced by the seizure. The director of community, trade, and economic development or deputy director of community, trade, and economic development, through the director of fire protection or the agency conducting the seizure, under whose authority the seizure was made shall cause notice to be served within fifteen days following the seizure on the owner of the fireworks seized and the person in charge thereof and any person having any known right or interest therein, of the seizure and intended forfeiture of the seized property. The notice may be served by any method authorized by law or court rule including but not limited to service by certified mail with return receipt requested. Service by mail shall be deemed complete upon mailing within the fifteen-day period following the seizure.

(2) If no person notifies the director of community, trade, and economic development, through the director of fire protection or the agency conducting the seizure, in writing of the person's claim of lawful ownership or right to lawful possession of seized fireworks within thirty days of the seizure, the seized fireworks shall be deemed forfeited.

(3) If any person notifies the director of community, trade, and economic development, through the director of fire protection or the agency conducting the seizure, in writing of the person's claim of lawful ownership or possession of the fireworks within thirty days of the seizure, the person or persons shall be afforded a reasonable opportunity to be heard as to the claim or right. The hearing shall be before an administrative law judge appointed under chapter 34.12 RCW, except that any person asserting a claim or right may remove the matter to a court of competent jurisdiction if the aggregate value of the seized fireworks is more than five hundred dollars. The hearing before an administrative law judge and any appeal therefrom shall be under Title 34 RCW. In a court hearing between two or more claimants to the article or articles involved, the prevailing party shall be entitled to a judgment for costs and reasonable attorneys' fees. The burden of producing evidence shall be upon the person claiming to have the lawful right to possession of the seized fireworks. The director of community, trade, and economic development, through the director of fire protection or the agency conducting the seizure, shall promptly return the fireworks to the claimant upon a determination by the administrative law judge or court that the claimant is lawfully entitled to possession of the fireworks.

(4) When fireworks are forfeited under this chapter the director of community, trade, and economic development, through the director of fire protection or the agency conducting the seizure, may:

(a) Dispose of the fireworks by summary destruction; or

(b) Sell the forfeited fireworks and chemicals used to make fireworks, that are legal for use and possession under this chapter, to wholesalers or manufacturers, authorized to possess and use such fireworks or chemicals under a license issued by the director of community, trade, and economic development, through the director of fire protection. Sale shall be by public auction after publishing a notice of the date, place, and time of the auction in a newspaper of general circulation in the county in which the auction is to be held, at least three days before the date of the auction. The proceeds of the sale of the seized fireworks under this section shall be deposited in the ((general fund. Fireworks that are not legal for use and possession in this state shall be destroyed by the director of community, trade, and economic development, through the director of fire protection, or by the agency conducting the seizure)) fire services trust fund and shall be used for the same purposes and in the same percentages as specified in RCW 70.77.343.

Sec. 25. RCW 70.77.455 and 1986 c 266 s 114 are each amended to read as follows:

(1) All licensees shall maintain and make available to the director of community, trade, and economic development, through the director of fire protection, full and complete records showing all production, imports, exports, purchases, and sales((~~, and consumption~~)) of fireworks items by ((~~kind and~~)) class.

(2) All records obtained and all reports produced, as required by this chapter, are not subject to disclosure through the public disclosure act under chapter 42.17 RCW.

Sec. 26. RCW 70.77.555 and 1982 c 230 s 44 are each amended to read as follows:

A local public agency may provide by ordinance for a ((~~permit~~)) fee in an amount sufficient to cover all legitimate ((~~administrative~~)) costs for ((~~permit~~)) all needed permits and local licenses from application to and through processing, issuance, and inspection, but in no case to exceed one hundred dollars for any one year.

NEW SECTION. Sec. 27. No person, firm, partnership, or corporation may knowingly advertise for sale fireworks which are unlawful pursuant to this chapter.

NEW SECTION. Sec. 28. (1) Every wholesaler shall carry commercial general liability insurance for each wholesale and retail fireworks outlet it operates in the amount of not less than five hundred thousand dollars per event, unless such insurance is not available from at least three approved insurance companies. If insurance in this amount is not offered, each wholesale and retail outlet shall be covered by a commercial general liability insurance policy in the maximum amount offered by at least three different approved insurance companies.

(2) No wholesaler may knowingly sell or supply fireworks to any retail outlet unless the wholesaler determines that the retail outlet carries commercial general liability insurance in the same amount as provided in subsection (1) of this section.

NEW SECTION. Sec. 29. Retail fireworks licensees shall purchase all fireworks from wholesalers possessing a valid wholesale license issued by the state of Washington.

NEW SECTION. Sec. 30. No port district, fire department, or fire protection district may limit by restrictions on total weight or number of containers or any other means the amount of common fireworks destined for, or unloaded at, any port in the state of Washington: PROVIDED, That a port district may prescribe reasonable rules to ensure the safe handling of such cargo after it is unloaded at the port.

NEW SECTION. Sec. 31. Sections 1, 6, 7, and 27 through 30 of this act are each added to chapter 70.77 RCW.

NEW SECTION. Sec. 32. A new section is added to chapter 42.17 RCW to read as follows:

All records obtained and all reports produced, as required under chapter 70.77 RCW, are not subject to the disclosure requirements under this chapter.

NEW SECTION. Sec. 33. RCW 70.77.465 and 1986 c 266 s 116 & 1961 c 228 s 70 are each repealed.

NEW SECTION. Sec. 34. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 35. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately.