(a) Unlawful Acts. It shall be unlawful for a person within the corporate limits of the City to manufacture, wholesale, distribute, import, sell or store for the purpose of resale, consumer fireworks, sparkling devices, or toy caps without a license, registration, certificate or permit from the State Fire Marshal and a valid business license issued by the City.
(b) Definitions. As used in this section, all terms, including but not limited to “consumer fireworks”, “fireworks or fireworks”, “model rocket”, “new explosive”, “novelties”, “person”, “sparkling devices”, “special effect”, and “toy caps” shall have the meanings ascribed to them in West Va. Code 29-3E-2 Definitions.
(c) Governing Conduct. The following conduct shall govern the use, ignition and discharge of consumer fireworks and sparkling devices in the corporate limits of the City.
(1) A person may not intentionally use, ignite, discharge or use consumer fireworks on public or private property without the express permission of the owner of such property to do so.
(2) A person may not intentionally use, ignite or discharge any consumer fireworks or sparkling devices within or throw the same from a motor vehicle, boat or building.
(3) A person may not intentionally use, ignite or discharge any consumer fireworks or sparkling devices into or at a boat, motor vehicle or building, or at any person or group of people.
(4) A person may not intentionally use, ignite or discharge may consumer fireworks or sparkling devices while the person:
A. Is under the influence of alcohol;
B. Is under the influence of any controlled substance;
C. Is under the influence of any other drug;
D. Is under the combined influence of alcohol and any controlled substance or any other drug.
(5) A person who is less than eighteen years of age or younger shall only use, ignite or discharge consumer fireworks or sparkling devices under the direct supervision of his or her parent, guardian or other adult person having the care and custody of the minor.
(6) All persons who use, ignite or discharge consumer fireworks or sparkling devices shall be responsible for the removal of all debris accumulated within twenty-four hours of such use and be financially responsible for all cleanup costs and damages due to the ignition, discharge or use of such fireworks.
(7) All persons who use, ignite or discharge consumer fireworks or sparkling devices shall be responsible for all fire suppression costs and expenses incurred by the City related to the use of such fireworks; and
(8) All persons who use, ignite or discharge consumer fireworks or sparkling devices shall abide by all legal requirements concerning such fireworks use, including the provisions of West Va. Code 29-3E-1 et seq., and Title 103 Legislative Rule West Virginia Fire Marshall Series 4 Regulation of Fireworks.
(9) No person shall use, ignite or discharge consumer fireworks or sparkling devices within proximity to any building or structure as follows: 50 feet for ground based fireworks and 100 yards for aerial fireworks.
(10) No person shall use, ignite or discharge consumer fireworks within the corporate limits of the City except as follows:
A. Between the hours of 10 a.m. and 10 p.m. on Memorial Day, Independence Day, and Labor Day; provided however, should any such holiday be celebrated on Monday or fall on Monday, consumer fireworks may also be used, ignited or discharged between the hours of 10 a.m. and 10 p.m. on the Saturday and Sunday immediately preceding said holiday; and
B. Between 10:00 a.m., on December 31, and 12:30 a.m. on January 1 (New Year’s Eve).
(11) All persons who use, ignite or discharge consumer fireworks shall ensure that such consumer fireworks are not propelled through, come in contact with, or discharge or explode onto any public street, highway or sidewalk, in or upon any building, at or near any person, or within 500 feet of any location posing a special fire danger, such as a gas station, lumber yard, bulk mulch, propane or chemical storage area.
(12) No person shall use, ignite or discharge consumer fireworks or sparkling devices during periods of very high or extreme fire danger as determined by the City Fire Department or the West Virginia Division of Forestry or while wind conditions are such that proper fireworks control cannot be exercised.
(d) Exception.
(1) The prohibitions set out in this Section shall not apply to the use, ignition or discharge of consumer fireworks in conjunction with theatrical, musical or similar performing arts productions in theaters, stadiums, concert halls and other venues for pyrotechnical special effects and/or a demonstration for resale by a wholesaler of consumer fireworks. All such uses, ignition or discharge of consumer fireworks shall be consistent with all applicable codes and standards established by the National Fire Protection Association (NFPA), including the codes and standards established by NFPA 1123 Code for the Display of Fireworks and NFPA 1126 Standard for the Use of Pyrotechnics Before a Proximate Audience.
(2) Any person desiring to use, ignite or discharge consumer fireworks in conjunction with a theatrical, musical or similar performing arts production in a theater, stadium, concert hall or other venue for pyrotechnical special effects and/or a demonstration for resale by a wholesaler of consumer fireworks, "the event", shall be required to submit or file a special event application with the City of Fairmont no less than sixty (60) days prior to the event.
(e) Penalty. On or after the effective date of the provisions of this section, any person who ignites, discharges or uses consumer fireworks or sparkling devices in violation of the provisions of this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100.00 nor more than $500.00.
(f) Seizure. All persons charged with enforcement of this section may seize, take or remove all consumer fireworks and sparkling devices intended to be used or used in violation of this section, and upon order of the Municipal Court for the City, the consumer fireworks so seized shall be disposed of at public auction or destroyed at the expense of the person from whom the same were seized.
(g) Enforcement. See West Va. Code 29-3E-13(b) - The City of Fairmont Police Officers, and Fire Department Personnel shall have the authority to enforce the provisions of this section.
Whenever reasonable grounds exist to believe that a violation of this section has occurred, all officers vested with the authority of its enforcement, may forthwith summon, by the issuance of a citation, any person charged with a violation of same to appear before the Judge of the Municipal Court for the City and to answer said charge on or before a date therein stated.
(h) Severability. If any subsection, subdivision, paragraph, provision, sentence, clause or word in this section is for any reason held invalid or unconstitutional, such holding shall not affect the validity, constitutionality, legality or application of any other portion of this section. (Ord. 1975. Passed 12-13-22.)