AN
ACT Relating to updating and harmonizing fireworks and explosives laws;
amending RCW 70.74.010, 70.74.191, 70.74.400, 70.77.126, 70.77.131, 70.77.136,
70.77.141, 70.77.160, 70.77.170, 70.77.175, 70.77.180, 70.77.205, 70.77.210,
70.77.215, 70.77.230, 70.77.236, 70.77.250, 70.77.255, 70.77.270, 70.77.305,
70.77.311, 70.77.315, 70.77.330, 70.77.335, 70.77.340, 70.77.343, 70.77.381,
70.77.395, 70.77.401, 70.77.405, 70.77.420, 70.77.425, 70.77.435, 70.77.440,
70.77.495, 70.77.510, 70.77.515, 70.77.517, 70.77.520, 70.77.535, 70.77.555,
70.77.575, and 70.77.580; adding new sections to chapter 70.77 RCW; and
prescribing penalties.
BE IT ENACTED BY THE
LEGISLATURE OF THE STATE OF WASHINGTON:
Sec.
1. RCW
70.74.010 and 1993 c 293 s 1 are each amended to read as follows:
As
used in this chapter, unless a different meaning is plainly required by the
context:
(1)
The terms "authorized", "approved" or "approval" shall
be held to mean authorized, approved, or approval by the department of labor
and industries.
(2)
The term "blasting agent" shall be held to mean and include any
material or mixture consisting of a fuel and oxidizer, ((intended for
blasting, not otherwise classified as an explosive, and in which none of the
ingredients are classified as an explosive, provided that the finished product,
as mixed and packaged for use or shipment, cannot be detonated when unconfined
by means of a No. 8 test blasting cap)) that is intended for blasting
and not otherwise defined as an explosive; if the finished product, as mixed
for use or shipment, cannot be detonated by means of a number 8 test blasting
cap when unconfined. A number 8 test blasting cap is one containing two grams
of a mixture of eighty percent mercury fulminate and twenty percent potassium
chlorate, or a blasting cap of equivalent strength. An equivalent strength cap
comprises 0.40-0.45 grams of PETN base charge pressed in an aluminum shell with
bottom thickness not to exceed 0.03 of an inch, to a specific gravity of not
less than 1.4 g/cc., and primed with standard weights of primer depending on
the manufacturer.
(3)
The term "explosive" or "explosives" whenever used in this
chapter, shall be held to mean and include any chemical compound or mechanical
mixture that is commonly used or intended for the purpose of producing an
explosion, that contains any oxidizing and combustible units, or other
ingredients, in such proportions, quantities or packing, that an ignition by
fire, by friction, by concussion, by percussion, or by detonation of any part
of the compound or mixture may cause such a sudden generation of highly heated
gases that the resultant gaseous pressures are capable of producing destructive
effects on contiguous objects or of destroying life or limb. In addition, the
term "explosives" shall include all material which is classified as
((class A, class B, and class C)) division 1.1, 1.2, 1.3, 1.4, 1.5,
or 1.6 explosives by the ((federal)) Unites States department
of transportation. For the purposes of this chapter small arms ammunition,
small arms ammunition primers, smokeless powder not exceeding fifty pounds, and
black powder not exceeding five pounds shall not be defined as explosives,
unless possessed or used for a purpose inconsistent with small arms use or
other lawful purpose.
(4)
Classification of explosives shall include but not be limited to the following:
(a)
((CLASS A)) DIVISION 1.1 and 1.2 EXPLOSIVES: (((Possessing))
Possess mass explosion or detonating hazard(())) and include
dynamite, nitroglycerin, picric acid, lead azide, fulminate of mercury, black
powder exceeding five pounds, blasting caps in quantities of 1001 or more, and
detonating primers.
(b)
((CLASS B)) DIVISION 1.3 EXPLOSIVES: (((Possessing)) Possess
a minor blast hazard, a minor projection hazard, or a flammable hazard(()))
and include propellant explosives, including smokeless ((propellants))
powder exceeding fifty pounds.
(c)
((CLASS C)) DIVISION 1.4, 1.5, and 1.6 EXPLOSIVES: (((Including))
Include certain types of manufactured articles which contain ((class
A or class B)) division 1.1, 1.2, or 1.3 explosives, or ((both))
all, as components, but in restricted quantities(())),
and also include blasting caps in quantities of 1000 or less.
(5)
The term "explosive-actuated power devices" shall be held to mean any
tool or special mechanized device which is actuated by explosives, but not to
include propellant-actuated power devices.
(6)
The term "magazine", shall be held to mean and include any building
or other structure, other than ((a factory)) an explosives
manufacturing building, used for the storage of explosives.
(7)
The term "improvised device" means a device which is fabricated with
explosives or destructive, lethal, noxious, pyrotechnic, or incendiary
chemicals and which is designed, or has the capacity, to disfigure,
destroy, distract, or harass.
(8)
The term "inhabited building", shall be held to mean and include only
a building regularly occupied in whole or in part as a habitation for human
beings, or any church, schoolhouse, railroad station, store, or other building
where people are accustomed to assemble, other than any building or structure
occupied in connection with the manufacture, transportation, storage, or use of
explosives.
(9)
The term "explosives manufacturing plant" shall be held to mean and
include all lands, with the buildings situated thereon, used in connection with
the manufacturing or processing of explosives or in which any process involving
explosives is carried on, or the storage of explosives thereat, as well as any
premises where explosives are used as a component part or ingredient in the
manufacture of any article or device.
(10)
The term "explosives manufacturing building", shall be held to mean
and include any building or other structure (excepting magazines) containing
explosives, in which the manufacture of explosives, or any processing involving
explosives, is carried on, and any building where explosives are used as a
component part or ingredient in the manufacture of any article or device.
(11)
The term "railroad" shall be held to mean and include any steam,
electric, or other railroad which carries passengers for hire.
(12)
The term "highway" shall be held to mean and include any public
street, public alley, or public road, including a privately financed,
constructed, or maintained road that is regularly and openly traveled by the
general public.
(13)
The term "efficient artificial barricade" shall be held to mean an
artificial mound or properly revetted wall of earth of a minimum thickness of
not less than three feet or such other artificial barricade as approved by the
department of labor and industries.
(14)
The term "person" shall be held to mean and include any individual,
firm, ((copartnership)) partnership, corporation, company,
association, society, joint stock company, joint stock association, and
including any trustee, receiver, assignee, or personal representative thereof.
(15)
The term "dealer" shall be held to mean and include any person who
purchases explosives or blasting agents for the sole purpose of resale, and not
for use or consumption.
(16)
The term "forbidden or not acceptable explosives" shall be held to
mean and include explosives which are forbidden or not acceptable for
transportation by common carriers by rail freight, rail express, highway, or
water in accordance with the regulations of the federal department of
transportation.
(17)
The term "handloader" shall be held to mean and include any person
who engages in the noncommercial assembling of small arms ammunition for his
own use, specifically the operation of installing new primers, powder, and
projectiles into cartridge cases.
(18)
The term "handloader components" means small arms ammunition, small
arms ammunition primers, smokeless powder not exceeding fifty pounds, and black
powder as used in muzzle loading firearms not exceeding five pounds.
(19)
The term "fuel" shall be held to mean and include a substance which
may react with the oxygen in the air or with the oxygen yielded by an oxidizer
to produce combustion.
(20)
The term "motor vehicle" shall be held to mean and include any
self-propelled automobile, truck, tractor, semi-trailer or full trailer, or
other conveyance used for the transportation of freight.
(21)
The term "natural barricade" shall be held to mean and include any
natural hill, mound, wall, or barrier composed of earth or rock or other solid
material of a minimum thickness of not less than three feet.
(22)
The term "oxidizer" shall be held to mean a substance that yields
oxygen readily to stimulate the combustion of organic matter or other fuel.
(23)
The term "propellant-actuated power device" shall be held to mean and
include any tool or special mechanized device or gas generator system which is
actuated by a propellant or which releases and directs work through a
propellant charge.
(24)
The term "public conveyance" shall be held to mean and include any
railroad car, streetcar, ferry, cab, bus, airplane, or other vehicle which is
carrying passengers for hire.
(25)
The term "public utility transmission system" shall mean power
transmission lines over 10 KV, telephone cables, or microwave transmission
systems, or buried or exposed pipelines carrying water, natural gas, petroleum,
or crude oil, or refined products and chemicals, whose services are regulated
by the utilities and transportation commission, municipal, or other publicly
owned systems.
(26)
The term "purchaser" shall be held to mean any person who buys,
accepts, or receives any explosives or blasting agents.
(27)
The term "pyrotechnic" shall be held to mean and include any
combustible or explosive compositions or manufactured articles designed and
prepared for the purpose of producing audible or visible effects which are
commonly referred to as fireworks as defined in chapter 70.77 RCW.
(28)
The term "small arms ammunition" shall be held to mean and include
any shotgun, rifle, pistol, or revolver cartridge, and cartridges for
propellant-actuated power devices and industrial guns. Military-type
ammunition containing explosive bursting charges, incendiary, tracer, spotting,
or pyrotechnic projectiles is excluded from this definition.
(29)
The term "small arms ammunition primers" shall be held to mean small
percussion-sensitive explosive charges encased in a cup, used to ignite
propellant powder and shall include percussion caps as used in muzzle loaders.
(30)
The term "smokeless ((propellants)) powder" shall be
held to mean and include solid chemicals or solid chemical mixtures in excess
of fifty pounds which function by rapid combustion.
(31)
The term "user" shall be held to mean and include any natural person,
manufacturer, or blaster who acquires, purchases, or uses explosives as an
ultimate consumer or who supervises such use.
Words
used in the singular number shall include the plural, and the plural the
singular.
Sec.
2. RCW
70.74.191 and 1998 c 40 s 1 are each amended to read as follows:
The
laws contained in this chapter and regulations prescribed by the department of
labor and industries pursuant to this chapter shall not apply to:
(1)
Explosives or blasting agents in the course of transportation by way of
railroad, water, highway, or air under the jurisdiction of, and in conformity
with, regulations adopted by the federal department of transportation, the
Washington state utilities and transportation commission, and the Washington
state patrol;
(2)
The laboratories of schools, colleges, and similar institutions if confined to
the purpose of instruction or research and if not exceeding the quantity of one
pound;
(3)
Explosives in the forms prescribed by the official United States Pharmacopoeia;
(4)
The transportation, storage, and use of explosives or blasting agents in the
normal and emergency operations of ((federal)) United States
agencies and departments including the regular United States military
departments on military reservations((,)); arsenals, navy yards,
depots, or other establishments owned by, operated by, or on behalf of, the
United States; or the duly authorized militia of any state ((or
territory,)); or to emergency operations of any state department or
agency, any police, or any municipality or county;
(5)
A hazardous devices technician when carrying out normal and emergency
operations, handling evidence, and operating and maintaining a specially
designed emergency response vehicle that carries no more than ten pounds of
explosive material or when conducting training and whose employer possesses the
minimum safety equipment prescribed by the federal bureau of investigation for
hazardous devices work. For purposes of this section, a hazardous devices
technician is a person who is a graduate of the federal bureau of investigation
hazardous devices school and who is employed by a state, county, or
municipality;
(6)
The importation, sale, possession, and use of fireworks as defined in
chapter 70.77 RCW, signaling devices, flares, fuses, and torpedoes;
(7)
The transportation, storage, and use of explosives or blasting agents in the
normal and emergency avalanche control procedures as conducted by trained and
licensed ski area operator personnel. However, the storage, transportation,
and use of explosives and blasting agents for such use shall meet the
requirements of regulations adopted by the director of labor and industries; ((and))
(8)
The storage of consumer fireworks as defined in chapter 70.77 RCW pursuant
to a forfeiture or seizure under chapter 70.77 RCW by the 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; and
(9)
Any violation under this chapter if any existing ordinance of any city,
municipality, or county is more stringent than this chapter.
Sec.
3. RCW
70.74.400 and 1993 c 293 s 8 are each amended to read as follows:
(1)
Explosives, improvised devices, and components of explosives and improvised
devices that are possessed, manufactured, delivered, imported, exported,
stored, sold, purchased, transported, abandoned, detonated, or used, or
intended to be used, in violation of a provision of this chapter are
subject to seizure and forfeiture by a law enforcement agency and no property
right exists in them.
(2)
The law enforcement agency making the seizure shall notify the Washington
state department of labor and industries of the seizure.
(3)
Seizure of explosives, improvised devices, and components of explosives and
improvised devices under subsection (1) of this section may be made if:
(a)
The seizure is incident to arrest or a search under a search warrant;
(b)
The explosives, improvised devices, or components have been the subject of a
prior judgment in favor of the state in an injunction or forfeiture proceeding
based upon this chapter;
(c)
A law enforcement officer has probable cause to believe that the explosives,
improvised devices, or components are directly or indirectly dangerous to
health or safety; or
(d)
The law enforcement officer has probable cause to believe that the explosives,
improvised devices, or components were used or were intended to be used in
violation of this chapter.
(((3)))
(4) A law enforcement agency shall destroy explosives seized under this
chapter when it is necessary to protect the public safety and welfare. When
destruction is not necessary to protect the public safety and welfare, and the
explosives are not being held for evidence, a seizure pursuant to this section
commences proceedings for forfeiture.
(((4)))
(5) The law enforcement agency under whose authority the seizure was
made shall issue a written notice of the seizure and commencement of the
forfeiture proceedings to the person from whom the explosives were seized, to
any known owner of the explosives, and to any person who has a known interest
in the explosives. The notice shall be issued within fifteen days of the
seizure. The notice of seizure and commencement of the forfeiture proceedings
shall be served in the same manner as provided in RCW 4.28.080 for service of a
summons. The law enforcement agency shall provide a form by which the person
or persons may request a hearing before the law enforcement agency to contest
the seizure.
(((5)))
(6) If no person notifies the seizing law enforcement agency in writing
of the person's claim of ownership or right to possession of the explosives,
improvised devices, or components within thirty days of the date the notice was
issued, the seized explosives, devices, or components shall be deemed
forfeited.
(((6)))
(7) If, within thirty days of the issuance of the notice, any person
notifies the seizing law enforcement agency in writing of the person's claim of
ownership or right to possession of items seized, the person or persons shall
be afforded a reasonable opportunity to be heard as to the claim or right. The
hearing shall be before the chief law enforcement or the officer's designee of
the seizing agency, except that the person asserting the claim or right may
remove the matter to a court of competent jurisdiction if the aggregate value
of the items seized is more than five hundred dollars. The hearing and any
appeal shall be conducted according to chapter 34.05 RCW. The seizing law
enforcement agency shall bear the burden of proving that the person (a) has no
lawful right of ownership or possession and (b) that the items seized were
possessed, manufactured, stored, sold, purchased, transported, abandoned,
detonated, or used in violation of a provision of this chapter with the
person's knowledge or consent.
(((7)))
(8) The seizing law enforcement agency shall promptly return the items
seized to the claimant upon a determination that the claimant is entitled to
possession of the items seized.
(((8)))
(9) If the items seized are forfeited under this statute, the seizing
agency shall ((destroy)) dispose of the explosives by summary
destruction. However, when explosives are destroyed either to
protect public safety or because the explosives were forfeited, the person from
whom the explosives were seized loses all rights of action against the law
enforcement agency or its employees acting within the scope of their
employment, or other governmental entity or employee involved with the seizure
and destruction of explosives.
(((9)))
(10) This section is not intended to change the seizure and forfeiture
powers, enforcement, and penalties available to the department of labor and
industries pursuant to chapter 49.17 RCW as provided in RCW 70.74.390.
Sec.
4. RCW 70.77.126
and 1995 c 61 s 3 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)) designed
to produce a visible or audible effect by combustion((, explosion)),
deflagration, or detonation, and ((classified as common)) which meets
the definition of articles pyrotechnic or consumer fireworks or ((special))
display 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 April 17, 1995)).
Sec.
5. RCW
70.77.131 and 1995 c 61 s 4 are each amended to read as follows:
"((Special))
Display fireworks" means ((any fireworks designed primarily for
exhibition display by producing visible or audible effects 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 April 17, 1995)) 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 mg)
of explosive materials, aerial shells containing more than 40 grams of
pyrotechnic compositions, and other display pieces which exceed the limits of
explosive materials for classification as "consumer fireworks" and
are classified as fireworks UN0333, UN0334, or UN0335 by the United States
department of transportation at 49 C.F.R. Sec. 172.101 as of the effective date
of this section, and including fused setpieces containing components which
exceed 50 mg of salute powder.
Sec.
6. RCW
70.77.136 and 1995 c 61 s 5 are each amended to read as follows:
"((Common))
Consumer fireworks" means ((any fireworks which are designed
primarily for retail sale to the public during prescribed dates and which
produce visual or audible effects 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 April 17, 1995)) any small firework device designed
to produce visible effects by combustion and which must comply with the
construction, chemical composition, and labeling regulations of the United
States consumer product safety commission, as set forth in 16 C.F.R. Parts 1500
and 1507 and including some small devices designed to produce audible effects,
such as whistling devices, ground devices containing 50 mg or less of explosive
materials, and aerial devices containing 130 mg or less of explosive materials
and classified as fireworks UN0336 by the United States department of
transportation at 49 C.F.R. Sec. 172.101 as of the effective date of this
section, and not including fused setpieces containing components which together
exceed 50 mg of salute powder.
NEW
SECTION. Sec. 7. A
new section is added to chapter 70.77 RCW to read as follows:
"Articles
pyrotechnic" means pyrotechnic devices for professional use similar to
consumer fireworks in chemical composition and construction but not intended
for consumer use which meet the weight limits for consumer fireworks but which
are not labeled as such and which are classified as UN0431 or UN0432 by the
United States department of transportation at 49 C.F.R. Sec. 172.101 as of the
effective date of this section.
Sec.
8. RCW
70.77.141 and 1982 c 230 s 4 are each amended to read as follows:
"Agricultural
and wildlife fireworks" includes fireworks devices distributed to farmers,
ranchers, and growers through a wildlife management program administered by the
United States department of the interior or an equivalent state or local
governmental agency.
Sec.
9. RCW
70.77.160 and 1997 c 182 s 1 are each amended to read as follows:
"Public
display of fireworks" means an entertainment feature where the public is or
could be admitted or allowed to view the display or discharge of ((special))
display fireworks.
Sec.
10. RCW
70.77.170 and 1995 c 369 s 44 are each amended to read as follows:
"License"
means a nontransferable formal authorization which the chief of the Washington
state patrol ((and)), through the director of fire protection ((are
permitted)), is authorized to issue under this chapter to allow a
person to engage in the act specifically designated therein.
Sec.
11. RCW
70.77.175 and 1961 c 228 s 12 are each amended to read as follows:
"Licensee"
means any person ((holding)) issued a fireworks license in
conformance with this chapter.
Sec.
12. RCW
70.77.180 and 1995 c 61 s 9 are each amended to read as follows:
"Permit"
means the official ((permission)) 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.
NEW
SECTION. Sec. 13. A
new section is added to chapter 70.77 RCW to read as follows:
"Permittee"
means any person issued a fireworks permit in conformance with this chapter.
Sec.
14. RCW
70.77.205 and 1995 c 61 s 11 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)) consumer fireworks items or
sets or packages containing ((common)) consumer fireworks items.
Sec.
15. RCW
70.77.210 and 1982 c 230 s 9 are each amended to read as follows:
"Wholesaler"
includes any person who sells fireworks to a retailer or any other person for
resale and any person who sells ((special)) display fireworks to
public display licensees.
Sec.
16. RCW
70.77.215 and 1982 c 230 s 10 are each amended to read as follows:
"Retailer"
includes any person who, at a fixed location or place of business, offers
for sale, sells((, transfers, or gives common)), or exchanges for
consideration consumer fireworks to a consumer or user.
Sec.
17. RCW
70.77.230 and 1982 c 230 s 11 are each amended to read as follows:
"Pyrotechnic
operator" includes any individual who by experience and training has
demonstrated the required skill and ability for safely setting up and
discharging ((public displays of special)) display fireworks.
Sec.
18. RCW
70.77.236 and 1997 c 182 s 4 are each amended to read as follows:
(1)
"New fireworks item" means any fireworks initially classified or
reclassified as ((special or common)) articles pyrotechnic, display
fireworks, or consumer fireworks by ((the United States bureau of
explosives or in the regulations of)) the United States department of
transportation after ((April 17, 1995)) the effective date of this
section, and which comply with the construction, chemical composition, and
labeling regulations of the United States consumer products safety commission,
16 C.F.R., Parts 1500 and 1507.
(2)
The 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)) and the United States consumer product safety commission. The
chief of the Washington state patrol, through the director of fire
protection, may determine((s)), stating reasonable grounds, that
the item should not be so classified.
Sec.
19. RCW
70.77.250 and 1997 c 182 s 5 are each 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, shall adopt those rules relating to fireworks as are necessary for
the implementation of this chapter.
(4)
The chief of the Washington state patrol, through the director of fire
protection, shall adopt those rules as are necessary to ensure statewide
minimum standards for the enforcement of this chapter. Counties((,)) and
cities((, and towns)) shall comply with these state rules. Any ((local
rules)) ordinances adopted by ((local authorities)) a
county or city 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 and city, county, or local government agency having
general law enforcement powers from enforcing this chapter within the
jurisdiction of the agency and city, county, or local government.
(6)
The chief of the Washington state patrol, through the director of fire
protection, shall adopt rules necessary to enforce the civil penalty provisions
for the violations of this chapter. A civil penalty under this subsection may
not exceed one thousand dollars per day for each violation and is subject to
the procedural requirements under section 20 of this act.
(7)
The chief of the Washington state patrol, through the director of fire
protection, may investigate or cause to be investigated all fires resulting, or
suspected of resulting, from the use of fireworks.
NEW
SECTION. Sec. 20. A
new section is added to chapter 70.77 RCW to read as follows:
(1)
The penalty provided for in RCW 70.77.250(6) shall be imposed by a notice in
writing to the person against whom the civil fine is assessed and shall describe
the violation with reasonable particularity. The notice shall be personally
served in the manner of service of a summons in a civil action or in a manner
which shows proof of receipt. Any penalty imposed by RCW 70.77.250(6) shall
become due and payable twenty-eight days after receipt of notice unless
application for remission or mitigation is made as provided in subsection (2)
of this section or unless application for an adjudicative proceeding is filed
as provided in subsection (3) of this section.
(2)
Within fourteen days after the notice is received, the person incurring the
penalty may apply in writing to the chief of the Washington state patrol,
through the director of fire protection, for the remission or mitigation of the
penalty. Upon receipt of the application, the chief of the Washington state
patrol, through the director of fire protection, may remit or mitigate the
penalty upon whatever terms the chief of the Washington state patrol, through
the director of fire protection, deems proper, giving consideration to the
degree of hazard associated with the violation. The chief of the Washington
state patrol, through the director of fire protection, may only grant a
remission or mitigation that it deems to be in the best interests of carrying out
the purposes of this chapter. The chief of the Washington state patrol,
through the director of fire protection, may ascertain the facts regarding all
such applications in a manner it deems proper. When an application for
remission or mitigation is made, any penalty incurred under RCW 70.77.250(6)
becomes due and payable twenty-eight days after receipt of the notice setting
forth the disposition of the application, unless an application for an
adjudicative proceeding to contest the disposition is filed as provided in
subsection (3) of this section.
(3)
Within twenty-eight days after notice is received, the person incurring the
penalty may file an application for an adjudicative proceeding and may pursue
subsequent review as provided in chapter 34.05 RCW and applicable rules of the
chief of the Washington state patrol, through the director of fire protection.
(4)
Any penalty imposed by final order following an adjudicative proceeding becomes
due and payable upon service of the final order.
(5)
The attorney general may bring an action in the name of the chief of the
Washington state patrol, through the director of fire protection, in the
superior court of Thurston county or of any county in which the violator may do
business to collect any penalty imposed under this chapter.
(6)
All penalties imposed under this section shall be paid to the state treasury
and credited to the fire services trust fund and used as follows: At least
fifty percent is for a statewide public education campaign developed by the chief
of the Washington state patrol, through the director of fire protection, and
the licensed fireworks industry emphasizing the safe and responsible use of
legal fireworks; and the remainder is for statewide efforts to enforce this
chapter.
Sec.
21. RCW
70.77.255 and 1997 c 182 s 6 are each amended to read as follows:
(1)
Except as otherwise provided in this chapter, no person, without appropriate
state 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;
(c)
Transport fireworks, except as a licensee or as a public carrier
delivering to a licensee; 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))
display 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))
consumer fireworks lawfully purchased at retail.
Sec.
22. RCW
70.77.270 and 1997 c 182 s 8 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 chief of the Washington state patrol, through the director of fire
protection, shall prescribe uniform, statewide standards for retail fireworks
stands including, but not limited to, the location of the stands, setback
requirements and siting of the stands, types of buildings and construction
material that may be used for the stands, use of the stands and areas around
the stands, cleanup of the area around the stands, transportation of fireworks
to and from the stands, and temporary storage of fireworks associated with the
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 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))
licensee unless the wholesaler determines that the retail fireworks ((stand))
licensee is covered by liability insurance in the same, or greater,
amount as provided in this subsection.
Sec.
23. RCW
70.77.305 and 1995 c 369 s 46 are each amended to read as follows:
The chief of the Washington state patrol, through the director of
fire protection, has the power to issue licenses for the manufacture,
importation, sale, and use of all fireworks in this state, except as
provided in RCW 70.77.311 and 70.77.395. A person may be licensed as a
manufacturer, importer, or wholesaler under this chapter only if the person has
a designated agent in this state who is registered with the chief of the
Washington state patrol, through the director of fire protection.
Sec.
24. RCW
70.77.311 and 1995 c 61 s 17 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;
(c)
It is of no greater quantity than necessary to control the described problem;
and
(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)) consumer 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;
(c)
For religious or specific purposes; and
(d)
A permit is obtained from the local fire official. No fee may be charged for
this permit.
Sec.
25. RCW
70.77.315 and 1997 c 182 s 10 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, and 70.77.395, 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.
26. RCW
70.77.330 and 1995 c 369 s 48 are each amended to read as follows:
If the chief of the Washington state patrol, through the director
of fire protection, finds that the granting of such license ((would)) is
not ((be)) contrary to public safety or welfare, he or she shall issue a
license authorizing the applicant to engage in the particular act or acts upon
the payment of the license fee specified in this chapter. Licensees may
transport the class of fireworks for which they hold a valid license.
Sec.
27. RCW
70.77.335 and 1982 c 230 s 23 are each amended to read as follows:
The
authorization to engage in the particular act or acts conferred by a license to
a person shall extend to ((salesmen)) sellers, authorized
representatives, and other employees of such person.
Sec.
28. RCW
70.77.340 and 1982 c 230 s 24 are each amended to read as follows:
The original and annual license fee shall be as follows:
Manufacturer.................................... $ 500.00
Importer......................................... 100.00
Wholesaler....................................... 1,000.00
Retailer
(for each separate retail outlet)....... 10.00
Public
display for ((special)) display
fireworks................................. 10.00
Pyrotechnic operator for ((special)) display
fireworks................................. 5.00
Sec.
29. RCW
70.77.343 and 1997 c 182 s 12 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))
display
fireworks................................. 40.00
Pyrotechnic operator for ((special))
display
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 statewide public education campaign developed by the 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 statewide enforcement efforts against the sale and use of
fireworks that are illegal under this chapter.
Sec.
30. RCW
70.77.381 and 1995 c 61 s 27 are each amended to read as follows:
(1)
Every wholesaler shall carry liability insurance for each wholesale and retail
fireworks outlet it operates in the amount 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
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 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))
licensee unless the wholesaler determines that the retail ((outlet))
licensee carries liability insurance in the same, or greater,
amount as provided in subsection (1) of this section.
Sec.
31. 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)) consumer fireworks within this state from twelve o'clock
noon to eleven o'clock p.m. on the twenty-eighth of June, from nine
o'clock a.m. to eleven o'clock p.m. on each day from the twenty-ninth of June
through the fourth of July, from nine o'clock a.m. to ((twelve)) nine
o'clock ((noon)) p.m. on the ((sixth)) fifth of
July ((of each year)), from twelve o'clock noon to eleven o'clock
p.m. on each day from the twenty-seventh of December through the thirty-first
of December of each year, and as provided in RCW 70.77.311. ((However,
no common))
(2)
Consumer fireworks may be ((sold)) used or discharged each
day between the hours of twelve o'clock noon and eleven o'clock p.m.
((and nine o'clock a.m.)) on the twenty-eighth of June and between
the hours of nine o'clock a.m. and eleven o'clock p.m. on the twenty-ninth of
June to the third of July, ((except)) and on July 4th ((from))
between the hours of nine o'clock a.m. ((through)) and
twelve o'clock midnight, and between the hours of nine o'clock a.m. and
eleven o'clock p.m. on July 5th, and ((except)) from six o'clock
p.m. on December 31st until one o'clock a.m. on January 1st of the subsequent
year((: 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)), and as
provided in RCW 70.77.311.
(3)
A city or county may enact an ordinance within sixty days of the effective date
of this act to limit or prohibit the sale, purchase, possession, or use of
consumer fireworks on December 27, 2002, through December 31, 2002, and
thereafter as provided in RCW 70.77.250(4).
Sec.
32. RCW
70.77.401 and 1995 c 61 s 7 are each amended to read as follows:
No
fireworks may be sold or offered for sale to the public as ((common)) consumer
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.
33. RCW
70.77.405 and 1982 c 230 s 32 are each amended to read as follows:
Toy
paper caps containing not more than twenty-five hundredths grain of explosive
compound for each cap and trick or novelty devices not classified as ((common))
consumer fireworks may be sold at all times unless prohibited by local
ordinance.
NEW
SECTION. Sec. 34. A
new section is added to chapter 70.77 RCW to read as follows:
(1)
"Permanent storage" means storage of display fireworks at any time
and/or storage of consumer fireworks at any time other than the periods allowed
under RCW 70.77.420(2) and 70.77.425 and which shall be in compliance with the
requirements of chapter 70.74 RCW.
(2) "Temporary storage" means the storage of consumer
fireworks during the periods allowed under RCW 70.77.420(2) and 70.77.425.
Sec.
35. RCW
70.77.420 and 1997 c 182 s 18 are each amended to read as follows:
(1)
It is unlawful for any person to store permanently fireworks of any
class without a permit for such permanent storage from the city or
county in which the storage is to be made. A person proposing to store permanently
fireworks shall apply in writing to a city or county at least ten days prior to
the date of the proposed permanent storage. The city or county
receiving the application for a permanent storage permit shall
investigate whether the character and location of the permanent storage
as proposed ((would)) meets the requirements of the zoning, building,
and fire codes or constitutes a hazard to property or ((be)) is
dangerous to any person. Based on the investigation, the city or county may
grant or deny the application. The 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))
consumer 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.
36. 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)) permanently
stocks of fireworks remaining unsold after the lawful period of sale as
provided in the person's permit except in such places of permanent
storage as the ((local fire official)) city or county issuing the
permit approves. Unsold stocks of ((common)) consumer 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)) 5th shall be returned on or before July 31st of the same
year, or remaining after the authorized retail sales period from twelve
o'clock noon 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 permanent
storage facilities of a licensed fireworks wholesaler((,)) or to
a magazine or permanent storage place approved by a local fire official.
Sec.
37. RCW
70.77.435 and 1997 c 182 s 20 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 chief of the Washington state patrol,
through the director of fire protection, ((shall be)) are subject
to seizure by the 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 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.
38. RCW
70.77.440 and 1997 c 182 s 21 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 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 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 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 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 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 at any time subsequent to
thirty days from such seizure or ten days from the final termination of
proceedings under this section, whichever is later; 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 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)) as follows: At
least fifty percent is for a statewide public education campaign developed by
the chief of the Washington state patrol, through the director of fire
protection, and the licensed fireworks industry emphasizing the safe and
responsible use of legal fireworks; and the remainder is for statewide efforts
to enforce this chapter.
Sec.
39. RCW
70.77.495 and 1988 c 128 s 11 are each amended to read as follows:
((Nothing
in this chapter shall be construed as permitting)) It is unlawful for
any person to set off fireworks of any kind in forest, fallows, grass or brush
covered land, either on his own land or the property of another, between April
15th and December 1st of any year, unless it is done under a written permit
from the Washington state department of natural resources or its duly
authorized agent, and in strict accordance with the terms of the permit and any
other applicable law.
Sec.
40. RCW
70.77.510 and 1984 c 249 s 31 are each amended to read as follows:
It
is unlawful for any person knowingly to sell, transfer, or agree to sell or
transfer any ((special)) display fireworks to any person who is
not a fireworks licensee as provided for by this chapter. A violation of this
section is a gross misdemeanor.
Sec.
41. RCW
70.77.515 and 1984 c 249 s 32 are each amended to read as follows:
(1)
It is unlawful for any person to offer for sale, sell ((or transfer)),
or exchange for consideration, any ((common)) consumer
fireworks to a consumer or user other than at a fixed place of business of a
retailer for which a license and permit have been issued.
(2)
No licensee may sell any fireworks to any person under the age of sixteen.
(3)
A violation of this section is a gross misdemeanor.
Sec.
42. RCW
70.77.517 and 1984 c 249 s 34 are each amended to read as follows:
It
is unlawful for any person, except in the course of continuous interstate
transportation through any state, to transport fireworks from this state into
any other state, or deliver them for transportation into any other state, or
attempt so to do, knowing that such fireworks are to be delivered, possessed,
stored, transshipped, distributed, sold, or otherwise dealt with in a manner or
for a use prohibited by the laws of such other state specifically prohibiting
or regulating the use of fireworks. A violation of this section is a gross
misdemeanor.
This
section does not apply to a common or contract carrier or to international or
domestic water carriers engaged in interstate commerce or to the transportation
of fireworks into a state for the use of ((federal)) United States
agencies in the carrying out or the furtherance of their operations.
In
the enforcement of this section, the definitions of fireworks contained in the
laws of the respective states shall be applied.
As
used in this section, the term "state" includes the several states,
territories, and possessions of the United States, and the District of
Columbia.
Sec.
43. RCW
70.77.520 and 1984 c 249 s 33 are each amended to read as follows:
It
is unlawful for any person to allow any ((rubbish)) combustibles
to accumulate in any premises in which fireworks are stored or sold or to
permit a fire nuisance to exist in such a premises. A violation of this
section is a misdemeanor.
Sec.
44. RCW
70.77.535 and 1994 c 133 s 14 are each amended to read as follows:
((This
chapter does not prohibit)) The assembling, compounding, use, and
display of articles pyrotechnic or special effects ((by any person
engaged)) in the production of motion pictures, radio or television
productions, or live entertainment ((when such use and display is an
integral part of the production and such person)) shall be under the
direction and control of a pyrotechnic operator licensed by the state of
Washington and who possesses a valid permit from the ((local fire
official)) city or county.
Sec.
45. RCW
70.77.555 and 1995 c 61 s 26 are each amended to read as follows:
(1)
A ((local public agency)) city or county may provide by ordinance
for a fee in an amount sufficient to cover all legitimate costs for all needed
permits ((and local)), licenses, and authorizations 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)) retail
sales permit for any one selling season in a year, whether June 28th through
July 5th or December 27th through December 31st, or a total of two hundred
dollars for both selling seasons.
(2)
A city or county may provide by ordinance for a fee in an amount sufficient to
cover all legitimate costs for all display permits, licenses, and
authorizations from application to and through processing, issuance, and
inspection, not to exceed actual costs and in no case more than a total of five
thousand dollars for any one display permit.
Sec.
46. RCW
70.77.575 and 1995 c 369 s 57 are each amended to read as follows:
(1)
The chief of the Washington state patrol, through the director of fire
protection, shall adopt by rule a list of the consumer fireworks that
may be sold to the public in this state pursuant to this chapter. The chief of
the Washington state patrol, through the director of fire protection, shall
file the list by October 1st of each year with the code reviser for publication,
unless the previously published list has remained current.
(2) The chief of the Washington state patrol, through the director
of fire protection, shall provide the list adopted under subsection (1) of this
section by November 1st of each year to all manufacturers, wholesalers, and
importers licensed under this chapter, unless the previously distributed list
has remained current.
Sec.
47. RCW
70.77.580 and 1995 c 369 s 58 are each amended to read as follows:
Retailers
required to be licensed under this chapter shall post prominently at each
retail ((outlet)) location a list of the consumer
fireworks that may be sold to the public in this state pursuant to this
chapter. The posted list shall be in a form approved by the chief of the
Washington state patrol, through the director of fire protection. The chief of
the Washington state patrol, through the director of fire protection, shall
make the list available ((the list)).
NEW
SECTION. Sec. 48. A
new section is added to chapter 70.77 RCW to read as follows:
Civil
proceedings to enforce this chapter may be brought in the superior court of
Thurston county or the county in which the violation occurred by the attorney
general or the attorney of the city or county in which the violation occurred
on his or her own motion or at the request of the chief of the Washington state
patrol, through the director of fire protection.
NEW
SECTION. Sec. 49. A
new section is added to chapter 70.77 RCW to read as follows:
In
addition to criminal penalties, a person who violates this chapter is also
liable for a civil penalty and for the costs incurred with enforcing this
chapter and bringing the civil action, including court costs and reasonable
investigative and attorneys' fees.
NEW SECTION. Sec. 50. 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.
