BP BHEAD INT S [atlas:bill]

AN ACT Relating to expanding days of sale while not changing days of use of common fireworks and clarifying other provisions of the existing state fireworks law; amending RCW 70.77.160, 70.77.170, 70.77.180, 70.77.236, 70.77.255, 70.77.270, 70.77.325, 70.77.343, 70.77.345, 70.77.355, 70.77.375, 70.77.395, 70.77.420, 70.77.425, 70.77.435, 70.77.440, 70.77.450, and 70.77.555; reenacting and amending RCW 70.77.250; reenacting RCW 70.77.315 and 70.77.455; adding a new section to chapter 70.77 RCW; repealing 1995 c 369 s 56; prescribing penalties; and declaring an emergency.

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

Sec. 1. RCW 70.77.160 and 1982 c 230 s 6 are each amended to read as follows:

"Public display of fireworks" means an entertainment feature where the public is admitted or ((~~permitted~~)) allowed to view the display or discharge of special fireworks.

Sec. 2. RCW 70.77.170 and 1995 c 369 s 44 are each amended to read as follows:

"License" means a ((~~nontransferable~~)) transferable formal authorization which the chief of the Washington state patrol and the director of fire protection are ((~~permitted~~)) authorized to issue under this chapter to engage in the act specifically designated therein.

Sec. 3. RCW 70.77.180 and 1995 c 61 s 9 are each amended to read as follows:

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

Sec. 4. RCW 70.77.236 and 1995 c 61 s 6 are each amended to read as follows:

(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 April 17, 1995.

(2) The ((~~director of community, trade, and economic development~~)) chief of the Washington state patrol 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~~)) chief of the Washington state patrol through the director of fire protection determines, stating reasonable grounds, that the item should not be so classified.

Sec. 5. RCW 70.77.250 and 1995 c 369 s 45 and 1995 c 61 s 12 are each reenacted and amended to read as follows:

(1) The chief of the Washington state patrol, through the director of fire protection, shall enforce and administer this chapter.

(2) The chief of the Washington state patrol, 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 chief of the Washington state patrol, through the director of fire protection, ((~~may prescribe such~~)) shall adopt those rules relating to fireworks as ((~~may be~~)) are necessary for the implementation of this chapter.

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

(5) The chief of the Washington state patrol, 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. 6. RCW 70.77.255 and 1995 c 61 s 13 are each amended to read as follows:

(1) Except as otherwise provided in this chapter, no person, without ((an)) appropriate state ((~~license or permit~~)) licenses and city or county permits as required by this chapter may:

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

(b) Make a public display of fireworks; ((or))

(d) Knowingly manufacture, import, transport, store, sell, or possess with intent to sell, as fireworks, explosives, as defined under RCW 70.74.010, that are not fireworks, as defined under this chapter.

(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.

NEW SECTION. Sec. 7. A new section is added to chapter 70.77 RCW to read as follows:

(1) A violation of RCW 70.77.255(1)(d) is a gross misdemeanor punishable by not less than thirty days in jail and a fine of not less than five thousand dollars.

(2) The minimum sentences required under subsection (1) of this section may not be suspended or deferred.

Sec. 8. RCW 70.77.270 and 1995 c 61 s 14 are each amended to read as follows:

(1) The governing body of a city or county, or a designee, shall grant an application for a permit under RCW 70.77.260(1) if the application meets the standards under this chapter, and the applicable ordinances of the city or county. The permit shall be granted by June 10, or no less than thirty days after receipt of an application whichever date occurs first, for sales commencing on June 28 and on December 27; or by December 10, or no less than thirty days after receipt of an application whichever date occurs first, for sales commencing only on December 27.

(2) The ((~~director of community, trade, and economic development~~)) chief of the Washington state patrol through the director of fire protection shall prescribe uniform, state-wide standards for retail fireworks stands and all matters related to the retail sale of fireworks. 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 liability insurance policy with coverage of not less than fifty thousand dollars and five hundred thousand dollars for bodily injury liability for each person and occurrence, respectively, and not less than fifty thousand dollars for property damage liability for each occurrence, 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 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 liability insurance in the same amount as provided in this subsection.

Sec. 9. RCW 70.77.315 and 1995 c 61 s 18 and 1995 c 369 s 47 are each reenacted 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 chief of the Washington state patrol, 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. 10. RCW 70.77.325 and 1994 c 133 s 8 are each amended to read as follows:

(1) An application for a license shall be made annually by every person holding an existing license who wishes to continue the activity requiring the license during an additional ((~~calendar~~)) year. The application shall be accompanied by the annual license fees as prescribed in RCW 70.77.343 and 70.77.340.

(2) A person applying for an annual license as a retailer under this chapter shall file an application ((~~by June 10 of the current year~~)) no later than May 1 for annual sales commencing on June 28 and on December 27, or no later than November 1 for sales commencing only on December 27. The ((~~director of community, trade, and economic development~~)) chief of the Washington state patrol, through the director of fire protection, shall grant or deny the license within fifteen days of receipt of the application.

(3) A person applying for an annual license as a manufacturer, importer, or wholesaler under this chapter shall file an application by January 31 of the current year. The ((~~director of community, trade, and economic development~~)) chief of the Washington state patrol, through the director of fire protection, shall grant or deny the license within ninety days of receipt of the application.

Sec. 11. RCW 70.77.343 and 1995 c 61 s 19 are each amended to read as follows:

(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~~)) chief of the Washington state patrol 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. 12. RCW 70.77.345 and 1995 c 61 s 20 are each amended to read as follows:

Every license and permit issued shall be for the ((~~calendar year~~)) period from January 1st ((~~to December 31st or for~~)) of the year for which the application is made through January 31 of the subsequent year, or the remaining portion thereof ((~~of the calendar year for which the license application is made~~)).

Sec. 13. RCW 70.77.355 and 1994 c 133 s 9 are each amended to read as follows:

(1) Any adult person may secure a general license from the ((~~director of community, trade, and economic development~~)) chief of the Washington state patrol, through the director of fire protection, for the public display of fireworks within the state of Washington. A general license is subject to the provisions of this chapter relative to the securing of local permits for the public display of fireworks in any city or county, except that in lieu of filing the bond or certificate of public liability insurance with the appropriate local official under RCW 70.77.260 as required in RCW 70.77.285, the same bond or certificate shall be filed with the ((~~director of community, trade, and economic development~~)) chief of the Washington state patrol, through the director of fire protection. The bond or certificate of insurance for a general license in addition shall provide that: (a) The insurer will not cancel the insured's coverage without fifteen days prior written notice to the ((~~director of community, trade, and economic development~~)) chief of the Washington state patrol, through the director of fire protection; (b) the duly licensed pyrotechnic operator required by law to supervise and discharge the public display, acting either as an employee of the insured or as an independent contractor and the state of Washington, its officers, agents, employees, and servants are included as additional insureds, but only insofar as any operations under contract are concerned; and (c) the state is not responsible for any premium or assessments on the policy.

(2) The ((~~director of community, trade, and economic development~~)) chief of the Washington state patrol, through the director of fire protection, may issue such general licenses. The holder of a general license shall file a certificate from the ((~~director of community, trade, and economic development~~)) chief of the Washington state patrol, through the director of fire protection, evidencing the license with any application for a local permit for the public display of fireworks under RCW 70.77.260.

Sec. 14. RCW 70.77.375 and 1995 c 61 s 21 are each amended to read as follows:

The chief of the Washington state patrol, through the director of fire protection, upon reasonable opportunity to be heard, 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 chief of the Washington state patrol, 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 chief of the Washington state patrol, through the director of fire protection, in refusing originally to issue such license.

Sec. 15. RCW 70.77.395 and 1995 c 61 s 22 are each amended to read as follows:

(1) It is legal to sell((,)) and purchase((~~, use, and discharge~~)) common fireworks within this state from ((~~twelve~~)) nine o'clock ((~~noon~~)) a.m. on the twenty-eighth of June to twelve o'clock noon on the sixth of July of each year, from nine o'clock a.m. on the twenty-seventh of December to eleven o'clock p.m. on the thirty-first of December of each year and as provided in RCW 70.77.311. ((~~However, no~~))

(2) Common fireworks may be ((~~sold~~)) used or discharged each day between the hours of nine o'clock a.m. and eleven o'clock p.m. ((~~and nine o'clock a.m.~~)) on the twenty-eighth of June to the sixth of July, ((~~except~~)) and on July 4th ((~~from~~)) between the hours of nine o'clock a.m. ((~~through~~)) and 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 and as provided in RCW 70.77.311: PROVIDED, That a city or county may prohibit the sale or discharge of common fireworks on December 31, 1995, by enacting an ordinance prohibiting such sale or discharge within sixty days of April 17, 1995.

Sec. 16. RCW 70.77.420 and 1984 c 249 s 26 are each amended to read as follows:

(1) It is unlawful for any person to store fireworks of any class without a permit for such storage from the ((~~local fire official in the jurisdiction~~)) city or county in which the storage is to be made. A person proposing to store fireworks shall apply in writing to a ((~~local fire official~~)) city or county at least ten days prior to the date of the proposed storage. The ((~~official~~)) city or county receiving the application for a storage permit shall investigate whether the character and location of the storage as proposed would constitute a hazard to property or be dangerous to any person. Based on the investigation, the ((~~official~~)) city or county may grant or deny the application. The ((~~official~~)) city or county may place reasonable conditions on any permit granted.

(2) For the purposes of this section the temporary storing or keeping of common fireworks when in conjunction with a valid retail sales license and permit shall comply with RCW 70.77.425 and the standards adopted under RCW 70.77.270(2) and not this section.

Sec. 17. RCW 70.77.425 and 1984 c 249 s 27 are each amended to read as follows:

It is unlawful for any person to store ((~~unsold~~)) stocks of fireworks remaining unsold after the lawful period of sale as provided in the person's permit except in such places of storage as the ((~~local fire official~~)) city or county issuing the permit approves. Unsold stocks of common fireworks remaining after the authorized retail sales period from ((~~twelve~~)) nine o'clock ((~~noon~~)) a.m. on June 28th to twelve o'clock noon on July 6th shall be returned on or before July 31st of the same year, or remaining after the authorized retail sales period from nine o'clock a.m. on December 27th to eleven o'clock p.m. on December 31st shall be returned on or before January 10th of the subsequent year to the approved storage facilities of a licensed fireworks wholesaler, to a magazine or storage place approved by a local fire official.

Sec. 18. RCW 70.77.435 and 1995 c 61 s 23 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~~)) chief of the Washington state patrol, through the director of fire protection, shall be subject to seizure by the ((~~director of community, trade, and economic development~~)) chief of the Washington state patrol, 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 by legal process anywhere in the state may be disposed of by the ((~~director of community, trade, and economic development~~)) chief of the Washington state patrol, 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. 19. RCW 70.77.440 and 1995 c 61 s 24 are each amended to read as follows:

(1) 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~~)) chief of the Washington state patrol or a designee, 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~~)) chief of the Washington state patrol, 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~~)) chief of the Washington state patrol, 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~~)) chief of the Washington state patrol, 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~~)) chief of the Washington state patrol, 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~~)) chief of the Washington state patrol, 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 may be retained by the agency conducting the seizure and used to offset the costs of seizure and/or storage costs of the seized fireworks. The remaining proceeds, if any, shall be deposited in the 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. 20. RCW 70.77.450 and 1994 c 133 s 13 are each amended to read as follows:

The ((~~director of community, trade, and economic development~~)) chief of the Washington state patrol, through the director of fire protection, may make an examination of the books and records of any licensee, or other person relative to fireworks, and may visit and inspect the premises of any licensee he may deem at any time necessary for the purpose of enforcing the provisions of this chapter. The licensee, owner, lessee, manager, or operator of any such building or premises shall permit the ((~~director of community, trade, and economic development~~)) chief of the Washington state patrol, through the director of fire protection, his or her deputies or salaried assistants, the local fire official, and their authorized representatives to enter and inspect the premises at the time and for the purpose stated in this section.

Sec. 21. RCW 70.77.455 and 1995 c 61 s 25 and 1995 c 369 s 54 are each reenacted to read as follows:

(1) All licensees shall maintain and make available to the chief of the Washington state patrol, through the director of fire protection, full and complete records showing all production, imports, exports, purchases, and sales of fireworks items by 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. 22. RCW 70.77.555 and 1995 c 61 s 26 are each amended to read as follows:

(1) A ((~~local public~~)) city or county agency may provide by ordinance for a fee for retail sales in an amount sufficient to cover all legitimate costs for all needed permits and local licenses from application to and through processing, issuance, and inspection, but in no case to exceed a total of one hundred dollars for any one year for initial permitting and a maximum of ten dollars for any one year for any change in permit holder or location of the retail fireworks stand.

Even though business, environmental impact, inspection, and all other required costs, fees, local licenses, and permits are not directly related to fireworks permits, fees, costs, and local licenses on their face; when these fees, costs, local licenses, and permits are necessary to the use and operation of the fireworks permits and local licenses such as, but not limited to, business, environmental impact, and inspection; they are included as part and parcel of the annual maximum fees, under subsection (1) of this section, that cover costs for the fireworks permits and local licenses.

(2) A city or county may provide by ordinance for a fee for public displays in an amount sufficient to cover all legitimate costs for all needed permits and local licenses from application to and through processing, issuance, and inspection, but in no case to exceed a total of three hundred dollars for any one year.

NEW SECTION. Sec. 23. 1995 c 369 s 56 is repealed.

NEW SECTION. Sec. 24. 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. 25. 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 takes effect immediately.