Relates to fireworks, dangerous fireworks and sparkling devices; repealer

Summary of provisions

Section one of this bill amends subdivisions 1, 2 and 3 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. 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 removes flares, sparkling devices and other novelties from the terms "fireworks" and "dangerous fireworks." The definitions of "fireworks" and "dangerous fireworks" remain unchanged and include sparkling devices in cities with a population of one million or more.

Subdivision 2 creates the crime of unlawful sale of dangerous fireworks to a minor is amended to include the sale of fireworks, sparkling devices and novelties.

Existing law

Section 270.00 of the penal law was derived from section 1844a 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 has previously been convicted of the sale of dangerous fireworks within the past five years 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 1956, 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 (CPSC) has outlawed sparklers containing magnesium; therefore the old definition is replaced by 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. 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 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 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 around based sparkling devices which are nonexplosive and non-aerial and which contain small amounts of pyrotechnic composition. This amended bill would permit these items to be possessed and sold in New York State. As mentioned above, in 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 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 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 prohibits the sale of sparkling devices to minors under the age of eighteen. Pursuant to the amendments, a repeat sale to a minor of these items subjects the offender to felony prosecution.

Legislative history

S4529D of 2011-2012 - passed assembly; passed senate; vetoed (memo 59)

Fiscal implications

To be determined. There will be considerable revenue from state sales tax.

Local fiscal implications

Possible additional sales tax revenues. There will be greater law enforcement efficiency due to clearer definitions of terms.

Effective date

This act shall take effect on the 30th day after it shall have become a law.