Relates to fireworks, dangerous fireworks and novelty devices; repealer

Section two of this bill adds a new Article 271 to the penal law addressing fireworks, dangerous fireworks and novelty devices. Nine new sections of law are created to replace the current single section of law which was confusing, dense and not generally effectively enforced.

Section 271.00 contains the definitions used in the new article and defines explosive composition -- generally chemicals, which when ignited explode and pyrotechnic composition -- generally chemicals which when ignited do not explode, but rather produce an audible or visible effect. The section also defines fireworks, dangerous fireworks and novelty devices. Novelty devices are generally defined as devices which are not classified as fireworks by the federal government and include such items as glow worms, party poppers, toy cap guns, snappers, drop pops and small wire sparklers which do not contain magnesium. Fireworks are defined to include blanks, toy cannons using explosives, firecracker's, salutes, sparklers and dipped stick sparklers containing magnesium, ground based sparklers and any combination of such items. Dangerous fireworks are defined to mean fireworks capable of causing serious physical injury, such as large firecrackers, various aerial devices/including skyrockets, aerial spinners, roman candles, chasers and large sparklers. The section clarifies that railroad flares, novelty devices and bank security devices are not to be deemed fireworks or dangerous fireworks. This bill continues the current ban on certain novelty devices deemed to be fireworks by the City of New York Fire Department in the City of New York.

Section 271.05 defines the crime of criminal possession and sale of fireworks in the second degree. Sale of either fireworks or dangerous fireworks without the appropriate permits is made a class B misdemeanor -- this recodifies current law. In addition, possession of dangerous fireworks without a required permit is made a crime. Under current law, possession of these devices which can cause serious physical injury is merely a violation -- an offense, not a crime. Section 271.10 defines the crime of criminal sale of fireworks in the first degree. This recodifies current law, using modern terms and structure. This section creates the class R misdemeanor crime for a person who either sells more than five hundred dollar's worth of fireworks or dangerous fireworks or sells such items to a minor. Section 271.15 defines the offense of unlawful possession of fireworks as a violation. Under current law, possession of either fireworks or dangerous fireworks is a violation. Using modern terms and structure, this section continues the prohibition of fireworks in New York state without an appropriate permit.

Section 271.20 deals with a person who repeatedly sells fireworks or dangerous fireworks to a minor. This crime is a class E felony and again recodifies current law, but uses more modern terms and structure.

Section 271.25 creates a statutory presumption that possession of fireworks valued at fifty dollars or more is presumed to be for sale, again a recodification of current law.

Section 271.30 addresses the application of this article to various specific industries or devices. Similar to current law, the section makes it clear the article does not apply to railroads or transportation agencies involved in interstate commerce, signaling flares, high explosives or fireworks and dangerous fireworks used by the military or the militia. The section also continues the current exemption to apply to New York manufacturers, wholesalers, dealers and jobbers in these items to continue to market these devices where it is lawful, and various limited exceptions dealing with television productions and the use of blanks at dog shows, the theater and athletic events. The definition of a novelty device provides a bright line standard and promotes uniform law enforcement statewide.

Section 271.35 recodifies current law relating to the sale of ammunition.

Section 271.40 recodifies current law relating to the unlawful sale of ammunition.

Section 3 of the bill is a technical amendment and makes a conforming amendment to section 270.05 of the penal law.

Section 4 of the bill is a technical amendment and makes a conforming amendment to section 405.00 of the penal law.

Section 5 of the bill is a technical amendment and makes a conforming amendment to section 405.05 of the penal law.

Section 6 of the bill is a technical amendment and makes a conforming amendment to section 61.07 of the arts and cultural affairs law.

Section 7 is the effective date. The bill becomes effective November first, next succeeding the date it shall become a law and sunsets November 1, 2011. This will permit the Legislature to review a 4-year period of enforcement activity to determine if further clarification or limitation is necessary.

Existing law

Section 270.00 of the penal law was derived from section 1844-a of the Penal Law of 1909 which was enacted into law in 1940. In 1997 certain fireworks were reclassified as "dangerous fireworks". These fireworks are capable of causing serious physical injury and include torpedoes, skyrockets, Roman candles and bombs. Current law penalizes as a violation the possession or use of fireworks or dangerous fireworks, and penalizes as a class B misdemeanor the sale of fireworks or dangerous fireworks. Any person who sells fireworks or dangerous fireworks valued at $500 or more, or who sells dangerous fireworks to a minor, is guilty of a class A misdemeanor. Finally, any person who, within the past five years has previously been convicted of the sale of dangerous fireworks, is guilty of a class E felony.

Justification

The current law has not been used effectively in part because of poor definitions. Courts have thrown out indictments because of poor definitions of the term fireworks. This bill strengthens those definitions. In addition very few arrests and convictions have been obtained under the current statute. Since 1996, 63 convictions have been obtained statewide. In 1999 and 2000 only five convictions were obtained. By modernizing the statute and clearly defining fireworks, dangerous fireworks and novelty devices, the bill will provide law enforcement with an important tool in reducing the use of illegal fireworks and homemade devices and encouraging the use of safe and legally regulated novelty devices. The amendments provide for technical changes to the definitions of "explosive composition" and "pyrotechnic composition." They also update the current definition of sparkler's as either wood stick or wire, and define handheld or ground based sparkling devices (also known as cone or cylindrical fountain sparklers) as a separate category of fireworks. The Consumer Products Safety Commission, hereinafter, CPSC, has outlawed sparkler's containing magnesium, so that definition is deleted and a definition of these devices based upon the weight of the pyrotechnic composition as used by both the CPSC and the United States Department of Transportation is substituted. Explosive or aerial sparkling devices are added to the list of dangerous fireworks and the provision making sparklers more than ten inches in length or one-fourth of an inch in diameter is deleted, as these sparklers would now be judged by weight of pyrotechnic composition, not length or size. Sparklers would still be defined as fireworks and still be banned without an appropriate permit, assuming the weight requirement was met. To meet the concerns of the City of New York, the definition of novelty devices is subdivided into four separate categories and all novelty devices would still be deemed fireworks and prohibited by this legislation in cities with a population in excess of one million. In other areas of the state, possession and sale of these items would be permitted. A second category would include handheld and ground based sparkling devices which are non-explosive and non-aerial and which contain small amounts of pyro-technic composition. These devices, also called fountain sparklers, although permitted to be manufactured, possessed and sold by the CPSC, are items subject to special shipping, storage and handling requirements by the federal government and admittedly are currently prohibited by state statute. This amended bill would permit these items to be possessed and sold in New York State. However, as to cities with a population of one million or more, these items would continue to be deemed "fireworks" and prohibited in such city by the provisions of this amendment. A third category would include toy pistol a and toy caps which currently are not considered fireworks under the Penal Law. The last category of novelty devices includes trick noisemakers, including party poppers/snappers and drop pops containing very small amount a of explosive composition. It is believed these items, very similar to toy cap guns are not covered by the current statute and their legal status statewide needs to be Clarified. The amendment also prohibits the sale of snakes, glow worms, smoke devices and small Wood stick or wire sparklers to minors under the age of Sixteen and prohibits the sale of fountain sparklers to minor's under the age of eighteen. Pursuant to the amendments, repeat sales to a minor of these items subjects the offender to felony prosecution. Since the article now prohibits the possession and sale of certain novelty devices in the City of New York and the sale of certain novelty devices to a minor, the exemption of novelty devices from application of the proposed article contained in section 271.30 of the bill is removed.

Legislative history

2004; S.7443/A.11541/ passed Senate; 2003, S.39, enacting clause stricken; 2002, 5.6925-5. In 2001, a bill (S.5612) to clarify that certain additional named devices did not constitute fireworks, was vetoed by the Governor. This bill attempts to address the concerns raised in that veto.

Fiscal implications

Minimal. Possible additional sales tax revenue due to increased sales of additional novelty devices not clearly lawful prior to the enactment of this legislation.

Local fiscal implications

Possible additional sales tax revenues. Some law enforcement efficiency due to more clear definition of terms.

Effective date

November first next succeeding the date it shall become a law, November 1, 2012 sunset.