Relates to offenses relating to possession or sale of fireworks and ammunition

Summary of provisions

Section one of this bill amends subdivision 1 of section 270.00 of the penal law to remove from its definition of "Fireworks" and "Dangerous Fireworks" sparkling devices, novelties, toy caps, and similar devices as defined by APA Standard 87-1, 2001 edition. In addition to being removed from the definition of "Fireworks" and "Dangerous Fireworks" this section also removes sparkling devices, novelties, toy caps, and similar devices as defined by APA Standard 87-1, from the definition of explosives and pyrotechnics.

Additionally this section provides definitions for "display fireworks", "articles pyrotechnic" and "special effects", all of which are included under the definition of "Fireworks." It also provides what the term "fireworks" and "dangerous fireworks" shall not be deemed to include, such as flares, sparkling devices and other novelties.

Section two of the bill adds Article 271 "Offenses Relating to Possession of Sale of Fireworks and Ammunition" to the penal law. Section 271.05 defines the crime of criminal possession or sale of fire- works or dangerous fireworks in the second degree. Includes sale, sell, or furnish display fireworks without a required permit or sale, sell, or furnish sparkling devices or novelties or similar devices to any person who is under the age of eighteen. Provides a penalty of a class B misdemeanor.

Section 271.10 defines the crime of criminal possession or sale of fire- works or dangerous fireworks in the first degree. Includes sale, sell, or furnish of any fire-works or dangerous fireworks valued at five hundred dollars or more without a required permit or sale, sell, or furnish sparkling devices, novelties, novelties or similar devices to any person who is under the age of eighteen. Provides penalty of a class A misdemeanor.

Section 271.15 defines the crime of unlawful possession of fireworks to occur whenever when a person shall possess, use, explode, or cause to

explode fireworks or dangerous fireworks. Provides a penalty of a violation.

Section 271.20 defines the crime of aggravated sale of fireworks or dangerous fireworks to a minor. Occurs when a person commits a crime defined in section 271.05 or 271.10 of this article within five years of being convicted of committing a crime defined in section 271.05 or 271.10 of this article. Provides a penalty of a class E felony.

Section 271.25 provides the presumption that criminal possession of fireworks or display fireworks valued at one hundred fifty dollars means that such fireworks were intended to be offered or exposed for sale.

Section 271.30 and also section 4 of the bill describes the limitations of application of the above mentioned provisions. Included in these limitations is a prohibition of the manufacture, sale or use of sparkl- ing devices in cities with a population of one million or more.

Section 5 provides for the licensure for the manufacture, distribution, wholesale and retail of sparkling devices in New York State. And also, all retailers of such products must register annually with the state.

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 defi- nitions 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 hand held 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 th~ United States Department of Transportation is substituted. Explosive or aerial sparkling devices are added to the list of dangerous fireworks and the provision making spark- lers 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 pyro- technic composition, not length or size.

Sparklers would still be defined as fireworks and still be banned with- out 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 legis- lation 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 hand held and ground based sparkling devices which are non-explosive and non-aerial and which contain small amounts of pyrotechnic 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 admit- tedly 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 th e provisions of this amendment. A third category would include toy pistols 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 amounts of explosive composition. It is believed these item s, very similar to toy cap guns, are not covered by the current statute and their legal status statewide needs to be clari- fied.

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

New Bill Similar to A.4725/S.3162 of 2009-2010 A.7603D/S.50370 of 2007-2008 A.8971B/S.4424C of 2005-2006 A.11541/S.7443 of 2003-2004

Fiscal implications

To be determined. There will be considerable revenue from state sales tax and vendor registration fees.

Local fiscal implications

Possible additional sales tax revenues. There will be one law enforce- ment efficiency due to more clear definition of terms.

Effective date

This act shall take effect immediately.