SB-0193, As Passed Senate, June 13, 2012

SUBSTITUTE FOR

SENATE BILL NO. 193

A bill to amend 2011 PA 256, entitled

"Michigan fireworks safety act,"

by amending sections 2, 4, 8, 12, 17, and 18 (MCL 28.452, 28.454,

28.458, 28.462, 28.467, and 28.468) and by adding sections 17a,

18a, 18b, and 18c.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 2. As used in this act:

(a) "Agricultural and wildlife fireworks" means fireworks

devices distributed to farmers, ranchers, and growers through a

wildlife management program administered by the United States

department of the interior or the department of natural resources

of this state.

(b) "APA standard 87-1" means 2001 APA standard 87-1, standard

for construction and approval for transportation of fireworks,

novelties, and theatrical pyrotechnics, published by the American

pyrotechnics association of Bethesda, Maryland.

professional use that are similar to consumer fireworks in chemical

composition and construction but not intended for consumer use,

that meet the weight limits for consumer fireworks but are not

labeled as such, and that are classified as UN0431 or UN0432 under

49 CFR 172.101.

(d) "Citation" means that term as described in section 17a.

(e) ~~(d)~~ "Commercial manufacturer" means a person engaged in

the manufacture of consumer fireworks.

(f) ~~(e)~~ "Consumer fireworks" means fireworks devices that are

designed to produce visible effects by combustion, that are

required to comply with the construction, chemical composition, and

labeling regulations promulgated by the United States consumer

product safety commission under 16 CFR parts 1500 and 1507, and

that are listed in APA standard 87-1, 3.1.2, 3.1.3, or 3.5.

Consumer fireworks does not include low-impact fireworks.

(g) ~~(f)~~ "Consumer fireworks certificate" means a certificate

issued under section 4.

(h) ~~(g)~~ "Department" means the department of licensing and

regulatory affairs.

(i) ~~(h)~~ "Display fireworks" means large fireworks devices that

are explosive materials intended for use in fireworks displays and

designed to produce visible or audible effects by combustion,

deflagration, or detonation, as provided in 27 CFR 555.11, 49 CFR

172, and APA standard 87-1, 4.1.

(j) ~~(i)~~ "Firework" or "fireworks" means any composition or

device, except for a starting pistol, a flare gun, or a flare,

designed for the purpose of producing a visible or audible effect

by combustion, deflagration, or detonation. Fireworks consist of

consumer fireworks, low-impact fireworks, articles pyrotechnic,

display fireworks, and special effects.

(k) "Fireworks safety fund" means the fireworks safety fund

created in section 11.

(l) ~~(j)~~ "Local unit of government" means a city, village, or

township.

(m) ~~(k)~~ "Low-impact fireworks" means ground and handheld

sparkling devices as that phrase is defined under APA standard 87-

1, 3.1, 3.1.1.1 to 3.1.1.8, and 3.5.

(n) (l) "Minor" means an individual who is less than 18 years

of age.

(o) ~~(m)~~ "NFPA" means the national fire protection association

headquartered at 1 Batterymarch Park, Quincy, Massachusetts.

(p) ~~(n)~~ "NFPA 1" means the uniform fire code, 2006 edition,

developed by NFPA.

(q) ~~(o)~~ "NFPA 72" means the "National Fire Alarm Code", 2002

edition, developed by NFPA.

(r) ~~(p)~~ "NFPA 101" means the "Life Safety Code", 2009 edition,

developed by NFPA.

(s) ~~(q)~~ "NFPA 1123" means the "Code for Fireworks Display",

2010 edition, developed by NFPA.

(t) ~~(r)~~ "NFPA 1124" means the "Code for the Manufacture,

Transportation, Storage, and Retail Sales of Fireworks and

Pyrotechnic Articles", 2006 edition, developed by NFPA.

(u) ~~(s)~~ "NFPA 1126" means the "Standard for the Use of

Pyrotechnics Before a Proximate Audience", 2011 edition, developed

by NFPA.

(v) ~~(t)~~ "Novelties" means that term as defined under APA

standard 87-1, 3.2, 3.2.1, 3.2.2, 3.2.3, 3.2.4, and 3.2.5 and all

of the following:

(i) Toy plastic or paper caps for toy pistols in sheets,

strips, rolls, or individual caps containing not more than .25 of a

grain of explosive content per cap, in packages labeled to indicate

the maximum explosive content per cap.

(ii) Toy pistols, toy cannons, toy canes, toy trick

noisemakers, and toy guns in which toy caps as described in

subparagraph (i) are used, that are constructed so that the hand

cannot come in contact with the cap when in place for the

explosion, and that are not designed to break apart or be separated

so as to form a missile by the explosion.

(iii) Flitter sparklers in paper tubes not exceeding 1/8 inch in

diameter.

(iv) Toy snakes not containing mercury, if packed in cardboard

boxes with not more than 12 pieces per box for retail sale and if

the manufacturer's name and the quantity contained in each box are

printed on the box; and toy smoke devices.

(w) ~~(u)~~ "Permanent building or structure" is a building or

structure that is affixed to a foundation on a site that has fixed

utility connections and that is intended to remain on the site for

more than 180 consecutive calendar days.

(x) ~~(v)~~ "Person" means an individual, agent, association,

charitable organization, company, limited liability company,

corporation, labor organization, legal representative, partnership,

unincorporated organization, or any other legal or commercial

entity.

(y) ~~(w)~~ "Retailer" means a person who sells consumer fireworks

or low-impact fireworks for resale to an individual for ultimate

use.

(z) ~~(x)~~ "Retail location" means a facility listed under NFPA

1124, 7.1.2.

(aa) "Rule" means that term as defined in section 7 of the

administrative procedures act of 1969, 1969 PA 306, MCL 24.207,

that was promulgated by the department.

(bb) "Serious impairment of a body function" means that term

as defined in section 58c of the Michigan vehicle code, 1949 PA

300, MCL 257.58c.

(cc) "Serious violation" means a violation of this act, an

order issued under this act, or a rule promulgated or adopted by

reference under this act for which a substantial probability exists

that death or serious impairment of a body function to a person

other than the violator may result unless the violator did not and

could not, with the exercise of reasonable diligence, know of the

presence of the violation.

(dd) ~~(y)~~ "Special effects" means a combination of chemical

elements or chemical compounds capable of burning independently of

the oxygen of the atmosphere and designed and intended to produce

an audible, visual, mechanical, or thermal effect as an integral

part of a motion picture, radio, television, theatrical, or opera

production or live entertainment.

(ee) ~~(z)~~ "State fire marshal" means the state fire marshal

appointed under section 1b of the fire prevention code, 1941 PA

207, MCL 29.1b.

(ff) ~~(aa)~~ "Warehouse" means a permanent building or structure

used primarily for the storage of consumer fireworks or low-impact

fireworks.

(gg) ~~(bb)~~ "Wholesaler" means any person who sells consumer

fireworks or low-impact fireworks to a retailer or any other person

for resale. Wholesaler does not include a person who sells only

display fireworks or special effects.

Sec. 4. (1) A person shall not sell consumer fireworks unless

the person annually obtains and maintains a consumer fireworks

certificate from the department under this section. A person who

knows, or should know, that he or she is required to comply with

this subsection and who fails or neglects to do so is guilty of a

misdemeanor punishable by imprisonment for not more than 2 years or

a fine, ~~of not more than $5,000.00 for each day the person is in~~

~~violation of this subsection,~~ or both, . with the fine as follows:

(a) For a first violation of this subsection, not more than

$5,000.00.

(b) For a second violation of this subsection, not more than

$20,000.00.

not more than $40,000.00.

(2) An application for a consumer fireworks certificate shall

meet all of the following requirements:

(a) Before January 1, 2012, the application shall be submitted

not less than 90 days before the applicant sells consumer

fireworks.

(b) Beginning January 1, 2012, the application shall be

submitted no later than April 1 of each year in which consumer

fireworks are to be sold.

retail location from which consumer fireworks are to be sold.

(d) Until January 1, 2014, the application shall be

accompanied by a fee of $1,000.00 for a certificate for each retail

location that is a permanent building or structure or $600.00 for

each retail location that is not a permanent building or structure.

Until January 1, 2014, the fireworks certificate fee required to be

paid for a retail location that is not a permanent building or

structure shall not exceed 60% of the fireworks certificate fee for

a retail location that is a permanent building or structure.

(e) The application shall be accompanied by a copy of the

applicant's current sales tax license, including the applicant's

account number, issued by the department of treasury for each

retail location where consumer fireworks are to be sold by the

applicant.

(3) A consumer fireworks certificate issued under this section

is valid from the date of issue until April 30 of the year after it

was issued. A person may renew a consumer fireworks certificate for

a retail location by making application in the same manner as

provided under subsection (2). However, the department shall not

issue a renewal consumer fireworks certificate unless the

department determines that the applicant properly remitted all of

the fireworks safety fees required to be paid in the preceding

year. The department shall provide to the department of treasury

the sales tax license information received from the applicant and

any additional information as may be necessary to allow the

department of treasury to confirm that each sales tax license

submitted by the applicant is current and valid. The department

shall enter into an agreement with the department of treasury under

section 28(1) of 1941 PA 122, MCL 205.28, that will allow the

department of treasury to provide that information to the

department. The department shall not issue an original or renewal

consumer fireworks certificate to an applicant until the department

of treasury has confirmed to the department that each sales tax

license submitted by the applicant is current and valid, and that

the applicant is otherwise eligible to obtain a consumer fireworks

certificate under this act.

(4) Not more than 30 days after an application is submitted to

the department under this section, the department shall issue or

deny issuance of a consumer fireworks certificate to the applicant

and, if issuance is denied, shall indicate to the applicant the

reason for denial.

(5) If the department denies issuance of a consumer fireworks

certificate under this section, the applicant may cure any defect

of the application within 45 days after the denial without paying

an additional fee. The department shall not unreasonably delay or

deny an application under this section.

(6) A consumer fireworks certificate is transferable upon

approval by the department and the payment of a $25.00 transfer

fee. However, the department shall not approve the transfer of a

consumer fireworks certificate unless the transferee satisfies

eligibility requirements for an original consumer fireworks

certificate under this act.

(7) The holder of a consumer fireworks certificate shall

prominently display the original or copy of the certificate in the

appropriate retail location. A person that violates this subsection

is responsible for a civil fine of $100.00. Each day that the

consumer fireworks certificate is not displayed as ~~provided~~

required under this subsection is a separate violation.

(8) The department shall not issue a consumer fireworks

certificate to ~~either of the following:~~

~~(a) A~~ a person that is ineligible under ~~section 8(4).~~this act.

~~(b) An individual who has been convicted of a felony involving~~

~~theft, fraud, or arson.~~

(9) The face of the consumer fireworks certificate shall

indicate the location or address for which it was issued.

(10) Fees collected under this section shall be deposited in

the fireworks safety fund. ~~created under section 11.~~

Sec. 8. (1) A user fee, known as the fireworks safety fee, is

imposed on retail transactions made in this state for consumer

fireworks and low-impact fireworks as provided in section 9.

(2) A person that acquires consumer fireworks or low-impact

fireworks in a retail transaction is liable for the fireworks

safety fee on the transaction and, except as otherwise provided in

this act, shall pay the fireworks safety fee to the retailer as a

separate added amount to the consideration in the transaction. The

retailer shall collect the fireworks safety fee as an agent for the

state.

(3) The fireworks safety fee shall be deposited in the

fireworks safety fund. ~~created under section 11.~~

(4) A person that knows or should know that he or she is

required to comply with the requirements of subsection (2) but

fails to collect or remit a fireworks safety fee as required under

this section is guilty of a misdemeanor punishable by a fine ~~of not~~

~~more than $10,000.00. In addition, the person is ineligible to~~

~~obtain a fireworks certificate for 1 year after conviction.~~

as follows:

(a) For a first violation of this subsection, not more than

$10,000.00.

(b) For a second violation of this subsection, not more than

$20,000.00.

not more than $40,000.00.

Sec. 12. (1) A person shall not ignite, discharge, or use

consumer fireworks on public property, school property, church

property, or the property of another person without that

organization's or person's express permission to use those

fireworks on those premises. Except as otherwise provided in this

~~subsection,~~ section, a person that violates this subsection is

responsible for a state civil infraction and may be ordered to pay

a civil fine of not more than $500.00.

Senate Bill No. 193 (S-3) as amended June 12, 2012

as amended June 13, 2012

(2) Consumer fireworks shall not be sold to a minor. A person

that violates this subsection ~~is responsible for a state civil~~

~~infraction and may~~ shall be ordered to pay a civil fine of not more

than $500.00, or, for a second or subsequent violation of this

subsection, a civil fine of not more than $1,000.00. In addition,

the person's consumer fireworks certificate shall be suspended for

90 days after the civil fine is ordered [FOR A SECOND OR SUBSEQUENT

VIOLATION]. This age requirement shall

be verified by any of the following:

(a) An operator's or chauffeur's license issued under the

Michigan vehicle code, 1949 PA 300, MCL 257.1 to 257.923.

(b) An official state personal identification card issued

under 1972 PA 222, MCL 28.291 to 28.300.

personal identification card issued under the enhanced driver

license and enhanced official state personal identification card

act, 2008 PA 23, MCL 28.301 to 28.308.

(d) A military identification card.

(e) A passport.

(f) Any other bona fide photograph identification that

establishes the identity and age of the individual.

[

]

[ (3)] An individual shall not use consumer fireworks or low-

impact fireworks while under the influence of alcoholic liquor, a

controlled substance, or a combination of alcoholic liquor and a

Senate Bill No. 193 (S-3) as amended June 13, 2012

controlled substance. As used in this subsection:

(a) "Alcoholic liquor" means that term as defined in section

1d of the Michigan vehicle code, 1949 PA 300, MCL 257.1d.

(b) "Controlled substance" means that term as defined in

section 8b of the Michigan vehicle code, 1949 PA 300, MCL 257.8b.

[ (4)] An individual who violates the smoking prohibition

under NFPA 1124, 7.3.11.1 is guilty of a misdemeanor punishable by

imprisonment for not more than 1 year or a fine of not more than

$1,000.00, or both.

[ (5)] Signage stating the smoking prohibition described in

subsection [(4) ] satisfies the requirements of NFPA 1124.

Sec. 17. ~~This~~ Except as otherwise provided in this act, this

act does not prohibit any of the following:

(a) A wholesaler, retailer, commercial manufacturer, or

importer from selling, storing, using, transporting, or

distributing consumer fireworks or low-impact fireworks.

(b) The use of fireworks by railroads or other transportation

agencies or law enforcement agencies for signal purposes or

illumination.

(d) The sale or use of blank cartridges for any of the

following:

(i) A show or play.

(ii) Signal or ceremonial purposes in athletics or sports.

(iii) Use by military organizations.

(iv) Use by law enforcement agencies.

(e) The possession, sale, or disposal of fireworks incidental

to the public display of fireworks by wholesalers or other persons

who possess a permit to possess, store, and sell explosives from

the bureau of alcohol, tobacco, firearms, and explosives of the

United States department of justice.

(f) Interstate wholesalers from selling, storing, using,

transporting, or distributing fireworks.

Sec. 17a. (1) If, as a result of an inspection or

investigation, the state fire marshal or the state fire marshal's

designee believes that a person has violated this act, an order

issued under this act, or a rule promulgated under this act, the

state fire marshal or his or her designee shall issue a citation to

the person not more than 90 days after the completion of the

physical inspection or investigation.

(2) Except as otherwise provided in this act, upon issuance of

a citation, the state fire marshal may immediately suspend the

consumer fireworks certificate of the person to whom the citation

was issued.

(3) Upon a proper petition, a court of competent jurisdiction

may enjoin a violation of this act.

(4) All of the following apply to a citation issued by the

state fire marshal or the state fire marshal's designee under this

act:

(a) It shall be in writing.

(b) It shall state on its face that it is an allegation of a

violation of this act, describe with particularity the nature of

the violation, and include a reference to the provision, rule, or

order alleged to be violated.

(i) The date of the citation.

(ii) The name and title of the individual who issued the

citation.

(iii) The name and address of the person to whom the citation is

issued.

(iv) The actions necessary to bring the person to whom the

citation is issued into compliance, including the payment of a

fine.

(v) A space for the signature of the person to whom the

citation is issued indicating that the person has received the

citation.

(vi) A space where the person to whom the citation is issued

may accept the citation and agree to comply or, in the alternative,

may indicate the intent of the person to whom the citation is

issued to contest the citation.

(vii) A notice that the person to whom the citation is issued

shall accept or reject the terms of the citation within 15 days of

the date of the citation.

(viii) A brief description of the administrative hearing process

and the process for settlement as provided for by rule.

(d) A citation may either be mailed to the person to whom the

citation is issued by certified mail, return receipt requested, or

delivered in person by the state fire marshal or state fire

marshal's designee who issued the citation.

Sec. 18. (1) Unless otherwise provided in this act, if a

person ~~knowingly, intentionally, or recklessly~~ violates this act,

the person is guilty of a crime as follows:

(a) Except as otherwise provided in this section, a

misdemeanor punishable by imprisonment for not more than 30 days or

a fine of not more than $1,000.00, or both.

(b) If the violation causes damage to the property of another

person, a misdemeanor punishable by imprisonment for not more than

90 days or a fine of not more than $5,000.00, or both.

function of another person, a felony punishable by imprisonment for

not more than 5 years or a fine of not more than $5,000.00, or

both. ~~As used in this subdivision, "serious impairment of a body~~

~~function" means that term as defined in section 58c of the Michigan~~

~~vehicle code, 1949 PA 300, MCL 257.58c.~~

(d) If the violation causes the death of another person, a

felony punishable by imprisonment for not more than 15 years or a

fine of not more than $10,000.00, or both.

(2) In addition to any other penalty imposed for the violation

of this act, a person that is found guilty of a violation of this

act shall be required to reimburse the appropriate governmental

agency for the costs of storing seized fireworks that the

governmental agency confiscated for a violation of this act. This

reimbursement shall be in a form and at a time as required by the

department and as otherwise required by law.

Sec. 18a. (1) Except as otherwise provided in this section, a

person who receives a citation for a serious violation, an order

issued under this act, or a rule promulgated under this act shall

be assessed a civil fine of not more than $1,000.00 for each

violation.

(2) Except as otherwise provided in this section, a person who

receives a citation for a violation of this act that is not a

serious violation may be assessed a civil fine of not more than

$500.00 for each violation.

(3) Subsections (1) and (2) do not apply to violations for

which a specific civil fine is provided by this act.

(4) The state fire marshal may request that the prosecuting

attorney for the county in which a violation of this act occurred

issue a complaint and request a warrant for the prosecution of a

person who commits a criminal violation of this act.

(5) All civil fines collected under this section shall be paid

to the department within 15 working days after the date the penalty

is ordered, not subject to further review, and credited to the

fireworks safety fund.

(6) The department of treasury shall institute proceedings to

collect any civil fines ordered but not paid under this act.

Sec. 18b. (1) The department shall not issue, and a person is

ineligible to be issued, a consumer fireworks certificate if either

of the following apply:

(a) The person was sentenced for a felony conviction within

the preceding 5 years.

(b) The person has ever been convicted of a felony involving

theft, fraud, or arson.

(2) If a person is convicted of a crime that would cause the

person to be ineligible to be issued a consumer fireworks

certificate on April 30 of the following year, the person's

consumer fireworks certificate shall be revoked for the balance of

the year for which the person's current consumer fireworks

certificate was issued.

Sec. 18c. (1) A person who is convicted of the following

offenses is ineligible to obtain a consumer fireworks certificate

for the following periods of time after conviction:

(a) For a second violation of section 4(1), 5 years.

(b) For a third or subsequent violation of section 4(1), 10

years.

(d) For a second violation of section 8(4), 5 years.

(e) For a third or subsequent violation of section 8(4), 10

years.

(f) For a violation of section 18(1)(b), 1 year.

(g) For a violation of section 18(1)(c), permanently.

(h) For a violation of section 18(1)(d), permanently.

(2) A sanction imposed under subsection (1) shall be imposed

in addition to any other penalty or sanction imposed for a

violation of this act.