Bill Summary for H 615 (2019-2020)

Summary date: 

Apr 8 2019

Bill Information:

View NCGA Bill Details2019-2020 Session
House Bill 615 (Public) Filed Thursday, April 4, 2019
AN ACT TO PERMIT THE SALE, POSSESSION, AND USE OF CERTAIN CONSUMER FIREWORKS AND TO LEVY AN EXCISE TAX ON THE SALES OF CONSUMER FIREWORKS.
Intro. by Szoka, Brody, Hardister, Wray.

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Bill summary

Identical to S 566, filed 4/2/19.

Amends GS 14-410 to establish that it is permissible for pyrotechnics that are consumer fireworks to be possessed, advertised, sold, used, transported, handled, or discharged within the state, so long as the possession, advertising, sale, use, transportation, handling, or discharge complies with Part 2 of Article 82A of GS Chapter 58, enacted below. Modifies subsection (b) to change the age to which it is unlawful to sell pyrotechnics, establishing that it is unlawful for any individual, firm, partnership, or corporation to sell consumer fireworks or pyrotechnics as defined in GS 14-414(2), (3), (4)c., (5), or (6) (currently does not include sale of consumer fireworks) to persons under the age of 18 (currently, under the age of 16). Makes conforming changes to the statute's title.

Amends GS 14-415 to make violations of GS 14-410(b), as amended, a Class 1 misdemeanor rather than a Class 2 misdemeanor.

Recodifies GS 58-82A-1 through GS 58-82A-55 as Part 1 of Article 82A of GS Chapter 58, and names it Display Pyrotechnics Training Permitting and enacts new Part 2, Consumer Fireworks, as follows. Defines consumer fireworks to mean any small fireworks device designed primarily to produce visible effects by combustion or deflagration that (1) is categorized as a 1.4G firework device under Standard 87-1 of the American Pyrotechnics Association and (2) complies with the construction, chemical composition, and labeling regulations of the US Consumer Product Safety Commission, as set forth in the CFR, volumes 16 and 49. Defines other terms applicable to new Part 2.

Prohibits use or possession of consumer fireworks within a county or city unless that county or city has adopted an ordinance to allow the use and sale of consumer fireworks in accordance with new GS 153A-130.1 and new GS 160A-190.1. Places the following conditions on the possession and use of consumer fireworks: (1) the person possessing or using the consumer fireworks must be at least 18 years old; (2) the use of consumer fireworks may occur only between the hours of 10 am and 10 pm except for other specified times on July 4th and December 31st and the following January 1st; (3) the use of consumer fireworks is prohibited in or on the premises of a public or private primary or secondary school unless the person has received written authorization from the school; on the campus of a college or university unless the person has received written authorization from the college or university; and within 1,500 feet of a hospital, veterinary hospital, animal care facility, licensed child care center, fireworks retailer, fireworks distributor, gas station, or bulk storage facility for petroleum products or other explosive or flammable substances; and (4) the possession or use of consumer fireworks is prohibited in or on the premises of any public park or public space, except as otherwise permitted by the person, state agency, or unit of local government owning or otherwise controlling the public park, property, or public space. Prohibits counties and cities from prohibiting the transportation of consumer fireworks across or through the county or city. Makes further clarifications as to transportation-related restrictions.

Prohibits selling consumer fireworks, sparkling devices, or novelties without a permit issued from the Commissioner of Insurance (Commissioner). Directs the Commissioner to issue rules to implement the statute. Requires permits of a fireworks retailer to be posted in a location visible to the public. Sets out conditions that must be met for permits to be issued to a person to operate a fireworks retailer or a sparkling device retailer, including maintaining public liability and product liability insurance with minimum coverage limits of $5 million, and establishes permit fees. Prohibits a county or city from restricting or excluding the transportation of consumer fireworks across or through the county or city. 

Sets out requirements that must be satisfied by all permittees, and the additional conditions that must be contained in any permit issued for a consumer fireworks permanent retailer or a consumer fireworks temporary retailer. Requires a permit issued to an incidental sparkling device retailer to allow the sale of sparkling devices and novelties only, and to require compliance with NFPA standards applicable to those sales. Defines NFPA standards to mean Standard 1124 of the National Fire Protection Association, 2017 edition, as it applies to the retail sale or distribution of consumer fireworks, except as provided in Part 2.

Sets out provisions concerning the power of the Commissioner of Insurance to exclude certain types or categories of pyrotechnics from the definition of consumer fireworks so long as the determination is evidence-based, and prohibiting the use of consumer fireworks during declared hazardous forest fire conditions.

Establishes that GS 14-415 (violations of the prohibition on the manufacture, sale and use of pyrotechnics) and GS 58-2-70 (Civil penalties or restitution for violations; administrative procedure) apply to violations of Part 2. Authorizes the Commissioner, a State law enforcement officer, a municipal law enforcement officer, a code enforcement officer, or a fire safety official to petition the district court to seize or remove, at the expense of the permit holder, fireworks sold, offered for sale, stored, possessed, or used in violation of Part 2. Authorizes the Commissioner to assess a civil penalty in addition to or instead of suspending a permit pursuant to GS 52-82A-115, as enacted. Makes any violation of GS 58-52A-120 a Class 1 misdemeanor.

Authorizes the Commissioner, by majority vote, to suspend the permit of a person authorized to sell consumer fireworks or sparkling devices for engaging in: (1) selling fireworks or explosives not authorized under Part 2; (2) selling consumer fireworks or sparkling devices within the state without a valid permit; (3) selling consumer fireworks or sparkling devices to a person who appears to be under the influence of alcohol or drugs; (4) knowingly aiding or assisting in procuring, furnishing, giving, selling, or delivering consumer fireworks or sparkling devices to a person under the age of 18; or (5) selling consumer fireworks or sparkling devices at a fireworks retail stand or fireworks tent in violation of GS 58-82A-120, as enacted. Provides that it is an affirmative defense to any disciplinary action taken pursuant to this provision that the permit holder procured, furnished, gave, sold, or delivered consumer fireworks or sparkling devices to a person under the age of 18 in reasonable reliance upon fraudulent proof of age presented to the permit holder. Establishes that the civil penalty must be at least $1,000 but cannot exceed $10,000, and requires the Commissioner to consider specified factors in determine the amount issued. Requires clear proceeds of civil penalties issued under the provision to be remitted to the Civil Penalty and Forfeiture Fund. Sets forth that a person whose permit has been suspended or has been issued a civil penalty under this provision must receive a hearing before the applicable body within 10 days of the suspension, and if the decision is upheld, the person can seek judicial review in superior court. 

Makes it unlawful to sell, transfer, or distribute consumer fireworks, sparking devices, or novelties at a fireworks retail stand or a fireworks tent unless the fireworks retailer obtains written authorization to conduct business from the owner of custodian of the property wherein the stand or tent is located, if applicable, and there is adequate parking to accommodate customers of the fireworks retailer and, if applicable, any other businesses that are on the premises. 

Requires certain safety labels on the packages of consumer fireworks, sparking devices, or novelties authorized to be sold under Part 2, and requires fireworks retailers to provide a safety pamphlet created by the Office of the State Fire Marshall to the purchaser which outlines safe handling and best practices.

Directs the Commissioner to create a training course or identify an existing training course to train individuals on the function, safe handling, and best practices for the safe use of all categories of consumer fireworks. Also requires the Commissioner to create and maintain a list of person who have completed the training. Allows the Department of Insurance to issue relevant rules and to charge a fee to cover the costs of implementing the statute.

Enacts new GS 153A-130.1 and GS 160A-190.1 allowing counties and cities to, by ordinance, regulate the use and sales of consumer fireworks, sparkling devices, and novelties to the public, effective October 1 following adoption and until its repeal, with any repeal effective October 1 following the repeal. Provides that a city or county can enact an ordinance at any time, but ordinances adopted prior to December 1, 2019, become effective December 1, 2019.

Enacts Article 2E to Subchapter I of GS Chapter 105, requiring an excise tax to be levied on consumer fireworks at the rate of 5% of the cost price of the products. Establishes that a person who sells consumer fireworks at retail is subject to and liable for this tax. Sets forth other provisions pertaining to tax on consumer fireworks, including filing monthly reports, discounts for timely filing a report and timely paying the tax, refunds, recordkeeping, and use of the tax, including crediting 25% of the proceeds to the Firefighters' Education Fund with the remainder credited to the General Fund. Applies to the cost price paid for fireworks on or after December 1, 2019.

Authorizes the Commissioner to require a fireworks retailer to furnish a bond, as specified, to protect the State from loss if the retailer fails to pay taxes due under Article 2E. Provides for calculation and periodic review of the bond amount. Allows substitution of an irrevocable letter of credit for the secured bond, as specified.

Enacts Article 85B to GS Chapter 58 to create the Firefighters' Education Fund within the Department of Insurance and administered by the Office of the State Fire Marshal, consisting of revenue credited from taxes under GS 105-113.125. Allows the Office of the State Fire Marshal to deduct administrative expenses, with the remaining revenues credited to be used to provide education and training to firefighters in the State. Defines firefighter.

Effective December 1, 2019, unless otherwise provided. Provides a saving clause for offenses committed before the effective date of the act. 

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