(a) Unlawful Acts and Legislative Intent.
(1) It is unlawful for a person to manufacture, wholesale, distribute, import, sell or store for the purpose of resale, consumer fireworks, sparkling devices, novelties or toy caps without a license, registration, certificate or permit from the State Fire Marshal.
(2) Except as hereinafter provided, no person, firm, co-partnership or corporation shall offer for sale, possess, expose for sale, sell at retail, keep with intent to sell at retail, or use or explode any fireworks unless a permit for the supervised display of fireworks is granted upon application to the State Fire Marshal and after approval of the Police and Fire Chiefs, and the filing of a bond by the applicant as provided hereinafter except as provided in paragraph (i)(4) below.
(3) The Mayor shall require a bond from the licensee in a sum not less than one thousand dollars ($1,000) conditioned on compliance with the provisions of this section and West Virginia Code Article 29-3E-1, et al., and the regulations of the State Fire Commission, provided, that the Municipality shall not be required to file such bond.
(4) Before any permit for a pyrotechnic display shall be issued, the person, firm or corporation making application therefor shall furnish proof of financial responsibility to satisfy claims for damages to property or personal injuries arising out of any act or omission on the part of such person, firm or corporation or any agent or employee thereof, in such amount, character and form as the State Fire Marshal determines to be necessary for the protection of the public.
(b) Definitions. As used in this article:
(1) "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 Division of Natural Resources of this state;
(2) "Amusement park" means any person or organization which holds a permit for the operation of an amusement ride or amusement attraction under article ten, chapter twenty-one of this code;
(3) "APA Standard 87-1" means the APA Standard 87-1 published by the American Pyrotechnics Association, as amended, and incorporated by reference into Title 49 of the Code of Federal Regulations;
(4) "Articles pyrotechnic" means pyrotechnic devices for 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 C.F.R. §172.101 (2014);
(5) "Consumer fireworks" means small 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 C.F.R. Parts 1500 and 1507 (2014), and that are listed in APA Standard 87-1. Consumer fireworks do not include sparkling devices, novelties, toy caps or model rockets;
(6) "Consumer fireworks certificate" means a certificate issued under section five of this article;
(7) "Display fireworks" means large fireworks to be used solely by professional pyretechnicians licensed by the State Fire Marshal and designed primarily to produce visible or audible effects by combustion, deflagration or detonation and includes, but is not limited to, salutes containing more than two grains (one hundred thirty milligrams} of explosive materials, aerial shells containing more than forty grams of pyrotechnic compositions and other display pieces that exceed the limits of explosive materials for classification as consumer fireworks and are classified as fireworks UN0333, UN0334, or UN0335 under 49 C.F.R. §172.101 (2014);
(8) "Distributor" means a person who sells fireworks to wholesalers and retailers for resale;
(9) "Division 1.3 explosive" means that term as defined in 49 C.F.R. §173.50 (2014);
(10) "Division 1.4 explosive" means that term as defined in 49 C.F.R. §173.50 (2014);
(11) "Explosive composition" means a chemical or mixture of chemicals that produces an audible effect by deflagration or detonation when ignited;
(12) "Fire Marshal" means the State Fire Marshal;
(13) "Firework" or "fireworks" means any composition or device designed for the purpose of producing a visible or audible effect by combustion, deflagration or detonation. Fireworks include consumer fireworks, display fireworks and special effects. Fireworks does not include sparkling devices, novelties, toy caps or model rockets;
(14) "Interstate wholesaler" means a person who is engaged in interstate commerce selling fireworks;
(15) "Model rocket" means that term as defined in National Fire Protection Association Standard 1122, "Code for Model Rocketry";
(16) "New explosive" means that term as defined in 49 C.F.R. §173.56 (2014);
(17) "NFPA 1123" means National Fire Protection Association Standard 1123, "Code for Fireworks Display;"
(18) "NFPA 1124" means National Fire Protection Association Standard 1124, "Code for the Manufacture, Transportation, Storage, and Retail Sales of Fireworks and Pyrotechnic Articles," 2006 Edition;
(19) "NFPA 1126" means National Fire Protection Association Standard 1126, "Standard for the Use of Pyrotechnics Before a Proximate Audience;"
(20) "Novelties" means that term as defined under APA standard 87-1, section 3.2; but shall not include toy pistols, toy caps, toy canes, toy guns or other similar devices;
(21) "Permanent" means that term as defined in NFPA 1124;
(22) "Person" means an individual or the responsible person for an association, an organization, a partnership, a limited partnership, a limited liability company, a corporation or any other group or combination acting as a unit;
(23) "Public display of fireworks" means a public entertainment feature that is advertised to the general public or is on public property that includes the display or discharge of fireworks;
(24) "Pyrotechnic composition" means a mixture of chemicals that produces a visible or audible effect by combustion rather than deflagration or detonation. A pyrotechnic composition will not explode upon ignition unless severely confined;
(25) "Retailer" means a person who purchases consumer fireworks for resale to consumers;
(26) "Sparkling devices" means "ground or handheld sparkling devices" as that phrase is defined under APA 87-1, sections 3.1.1 and 3.5;
(27) "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;
(28) "Temporary" means that term as defined in NFPA 1124;
(29) "Toy caps" means that term as defined under APA 87-1, section 3.3; and
(30) "Wholesaler" means any person who sells consumer fireworks to a retailer or any other person for resale and any person who sells articles of pyrotechnics, display fireworks, and special effects to a person licensed to possess and use those devices.
(c) Production or Transportation of Fireworks.
(1) A person may produce or transport a firework that is a new explosive and that is either a division 1.3 explosive or division 1.4 explosive if the person first meets the requirements of 49 C.F.R. §173.56(2)(1) (2014).
(d) Sparkling Devices and Novelties Registration Required.
(1) A person may not sell sparkling devices or novelties without being registered with the State Fire Marshal and provide proof to the City upon request.
(2) A registration is not transferable.
(3) A person shall post the registration in a conspicuous place at the location of the business.
(4) A separate registration is required for each location.
(e) Consumer Fireworks Certificate Required.
(1) A retailer may not sell consumer fireworks unless the retailer is certified under this article and provides proof to the City upon request.
(2) A consumer fireworks certificate is not transferable .
(3) Retailers shall post the certificate in a conspicuous place at the location of the business.
(4) A separate certificate is required for each location of the business.
(5) A certificate holder may also sell sparkling devices and novelties at the same location without additionally obtaining a sparkling devices and novelties registration.
(6) A retailer who sells consumer fireworks shall comply with the regulations provided in NFPA 1124.
(7) A retailer who sells consumer fireworks shall comply with all regulations provided in NFPA 1124. The State Fire Marshal may by legislative rule, promulgate rules to supplement those rules established in NFPA 1124.
(8) A retailer shall sell the consumer fireworks only from a permanent building or structure that meets the specifications in NFPA 1124 or a temporary facility or structure that meets the specifications of NFPA 1124.7.3.5.
(f) Required Permit for Public Fireworks Display.
(1) The City of Vienna, any other municipality, county, fair association, amusement park or other organization operating within the City shall have a permit from the State Fire Marshall to present a public display of fireworks and provide proof of the same upon request.
(2) The requestor, be it the City of Vienna, any other municipality, county, fair association, amusement park or another organization shall give written notice to the Vienna City Police and the Vienna Fire Department at least five (5) days prior to the display for which the permit is sought.
(3) A permit is not transferable.
(4) The display shall be operated by a competent operator licensed or certified as to competency by the State Fire Marshal and shall be of such composition, character, and so located, discharged or fired so as to be safe in the opinion of the chief of the fire department serving the community or area where such display is being held.
(g) Rules Adopted by the City. The City of Vienna adopts the rules formally adopted by the WV State Fire Marshal's Office:
(1) Title 103, Legislative Rule, West Virginia Fire Marshal, Series 4 (103 CSR 4)
(2) Adopting by reference the most recent edition of APA Standard 87-1;
(3) Adopting by reference the most recent edition of NFPA 1123, Code for Fireworks Display;
(4) Adopting by reference NFPA 1124, code for the manufacture, transportation, storage and retail sales of fireworks and pyrotechnic articles;
(5) Adopting by reference the most recent edition of NFPA 1126, standard for the use of pyrotechnics before a proximate audience;
(h) Exemptions. This article does not prohibit any of the following :
(1) The use of fireworks by railroads or other transportation agencies for signaling purposes or illumination;
(2) The use of agricultural and wildlife fireworks;
(3) The sale or use of blank cartridges for a theatrical performance, use by military organizations or signal or ceremonial purposes in athletics or sports; or
(4) The possession, sale or disposal of fireworks incidental to the public display of fireworks by wholesalers or other persons who have a permit to possess, store and sell explosives from the Bureau of Alcohol, Tobacco, Firearms, and Explosives of the United States Department of Justice and the State Fire Marshal.
(i) Violations of this Article; Penalties.
(1) A person may not intentionally ignite, discharge or use consumer fireworks on public or private property without the express permission of the owner to do so.
(2) A person may not intentionally ignite or discharge any consumer fireworks or sparkling devices within or throw the same from a motor vehicle or building.
(3) A person may not intentionally ignite or discharge any consumer fireworks or sparkling devices into or at a motor vehicle or building, or at any person or group of people.
(4) A person may intentionally ignite or discharge fireworks, on private property and only with the property owner's permission:
A. July 1 through July 7 and December 28 through January 3, between noon and 10:00 pm;
B. Between noon and midnight on July 4;
C. Between noon December 31 and 1:00 A.M. January 1.
(5) A person may not intentionally ignite or discharge any consumer fireworks or sparkling device 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; or
D. Is under the combined influence of alcohol and any controlled substance or any other drug.
(6) A person who is less than eighteen years of age may not purchase, nor offer for sale, consumer fireworks.
(7) The provisions of this section shall be effective upon passage.
(Ord. 05-18. Passed 6-28-18.)