AB438: Bill Text

LRB-2585/1

RJM:cjs:rs

2003 - 2004 LEGISLATURE

2003 Assembly BILL 438

July 21, 2003 - Introduced by Representatives Kerkman, Steinbrink, Albers, Hines, Kreuser, J. Lehman, M. Lehman, Lothian, Ott and Turner, cosponsored by Senators Brown, Risser, Roessler and Wirch. Referred to Committee on Criminal Justice.

AB438,1,11 An Act to repeal 167.10 (3) (c) 1. to 7. and 167.10 (3) (g); to renumber 167.10 (7); to renumber and amend 167.10 (3) (a), 167.10 (3) (c) (intro.) and 167.10 (3) (d); to amend 20.143 (3) (j), 167.10 (2), 167.10 (3) (title), 167.10 (3) (e), 167.10 (3) (f) (intro.) and 4., 167.10 (3) (h), 167.10 (4), 167.10 (8) (a) and (b) and 167.10 (9) (b); to repeal and recreate 167.10 (7) (title); and to create 167.10 (2) (d), 167.10 (3) (a) 2. to 6., 167.10 (3) (b) 1m., 167.10 (3) (em), 167.10 (3m), 167.10 (7) (b), 167.10 (9) (bm), 167.10 (9) (bs) and 167.10 (9) (j) of the statutes; relating to: the sale of fireworks; fireworks permits and displays; shipping fireworks; fireworks wholesalers licenses; disposition of seized fireworks; fireworks enforcement; granting rule-making authority; making an appropriation and providing a penalty.

Analysis by the Legislative Reference Bureau

With limited exceptions, current law prohibits the sale of regulated fireworks to any person who does not hold a fireworks user's permit issued by the city, village, or town (municipality) in which the possession or use of the fireworks will occur. Currently, a fireworks user's permit may be obtained only by a public authority, fair association, amusement park, park board, civic organization, agricultural producer (for the protection of crops from predatory birds or animals), or group of resident or nonresident individuals. One current exception to the fireworks user's permit requirement authorizes a resident wholesaler to sell regulated fireworks "to a person outside of this state," even if the person does not hold a permit. In State v. Victory Fireworks, Inc., 230 Wis. 2nd 721 (Ct. App. 1999), the court of appeals held that this exception permits a sale only to a person who is physically located outside of this state.

Current law authorizes the mayor, president, or chairperson of a municipality, or other designated municipal official or employee, to issue a fireworks user's permit. The municipality may require a person obtaining a fireworks user's permit to take out an indemnity bond or liability insurance policy in the name of the municipality for payment of any claims that may arise from the use of the fireworks. Under current law, a fire or law enforcement official of the municipality must be given a copy of a fireworks user's permit at least two days before the date of use authorized in the permit. Current law does not specify who is required to give this copy to the fire or law enforcement official.

Under current law, a law enforcement officer may seize fireworks that are stored, handled, sold, possessed, or used by a person who violates the fireworks laws, a local ordinance regulating fireworks, or a court order enjoining violation of such a law or ordinance. Current law also sets forth procedures that generally must be followed for the return of seized property. The law provides for a court hearing to determine ownership of the property and, with certain exceptions, requires return of the property to its owner if it is not contraband and it is not needed as evidence or all proceedings in which it might be required have been completed. Currently, seized fireworks are generally exempt from these procedures. Instead, fireworks seized as evidence of a violation for which no conviction results must be returned to the owner in the same condition as when they were seized, to the extent practicable. In addition, only the fireworks that are the subject of a violation may be destroyed after conviction of a fireworks violation.

Currently, a person who violates a state law or local ordinance pertaining to the sale, possession, use, or storage of fireworks is subject to a forfeiture of not more than $1,000. In addition, a municipality may petition the circuit court for an order enjoining violations of these fireworks laws or a local ordinance pertaining to fireworks. A person who violates such a court order is subject to a fine of not more than $10,000 or imprisonment of not more than nine months, or both.

This bill makes numerous changes to the laws governing fireworks. Significant changes include the following:

Fireworks user's permits and fireworks displays

This bill generally repeals the current law with regard to fireworks user's permits, including the list of entities to whom a such a permit may be issued, and instead specifies that, with limited exceptions, fireworks may be sold only to a person who holds a fireworks display permit issued by the municipality in which the fireworks display will occur. A person may obtain a fireworks display permit only for the purpose of conducting a fireworks display and only if statutory requirements are met. The bill specifies that all outdoor displays must meet the requirements of National Fire Protection Association Standard NFPA 1123, Code for Fireworks Display, 1995 edition, approved by the American National Standards Institute. The bill retains the provision that allows a municipality to issue a fireworks user's permit to an agricultural producer for the use of fireworks for crop protection and exempts agricultural producers from most of the permit requirements that apply to fireworks display permits.

The bill specifies that a person must obtain a fireworks display permit directly from the municipality that issues the permit and requires the municipal official or employee who issues a fireworks permit to do so at a location where he or she, in the normal course of municipal affairs, carries out his or her official responsibilities or duties. Under the bill, a fireworks display permit may be issued only for the purpose of conducting a fireworks display. The bill requires an application for a permit to identify a person certified by the Pyrotechnics Guild International who will be responsible for supervising the display. Under the bill, a municipality must require the person obtaining a fireworks display permit to take out an indemnity bond or liability insurance policy in the name of the municipality for payment of any claims that may arise from the fireworks display. The bill requires an application for a fireworks display permit to be made at least 20 days before the proposed date of the fireworks display and requires the municipality to send a copy of each permit to the Department of Commerce (department) within ten working days after the permit is issued.

The bill also includes requirements relating to fire protection. The bill specifies that the chief of a fire department providing fire protection services to the city, village, or town issuing a fireworks display permit must approve and sign the permit before it is issued. The fire chief must retain a copy of each permit that he or she approves and signs. The bill further specifies that a fireworks display permit may not be issued unless: (a) the chief of the fire department or a fire official designated by the chief has conducted an on-site inspection of the area where the fireworks are proposed to be displayed; (b) the person conducting the inspection determines that the proposed display does not pose a danger to public safety, after considering the proposed discharge site, the spectator viewing area, and the designated fallout area; and (c) the person conducting the inspection determines that there are adequate plans in place for fire protection and crowd control for the proposed display.

Fireworks wholesalers

The bill contains several provisions regulating the sale of fireworks by wholesalers. Under the bill, no person may sell fireworks at wholesale without a fireworks wholesale license from the department. The bill directs the department to promulgate rules governing the licensing of fireworks wholesalers. The rules must specify a license fee and enforcement procedures, including license suspension or revocation procedures applicable to licensees who violate any state or federal laws or regulations governing fireworks.

The bill allows a licensed fireworks wholesaler to sell fireworks to any person otherwise authorized to purchase fireworks, to another licensed fireworks wholesaler, or to a person who is registered with the department as a person engaged in the legal retail or wholesale sale of fireworks. The bill also codifies the decision of the court in State v. Victory Fireworks, Inc. and provides that a licensed wholesaler may sell fireworks to any person who is physically located outside of this state at the time the sale is made, even though the person does not hold a permit. In addition, if a licensed wholesaler ships fireworks sold under the bill, the fireworks must be transported by common motor carrier, a licensed fireworks wholesaler, or a person registered with the department to purchase fireworks at wholesale. The bill requires a fireworks wholesaler to maintain a specified record of each sale of fireworks for five years.

Under the bill, the department must promulgate rules providing for annual registration of persons who wish to purchase fireworks at wholesale in this state. The rules must specify a registration fee and require a person wishing to register to provide proof, other than a signed statement, that the person is engaged in the legal retail or wholesale sale of fireworks. The department is required to assign a registration number to each person who meets the requirements for registration.

Penalties and enforcement

The bill makes the following changes to the penalty and enforcement provisions in the fireworks law:

1. Authorizes the district attorney of the county where a violation relating to the sale, possession, use, or storage of fireworks occurs, or the attorney general, to petition the circuit court for an order enjoining the violation.

2. Provides that the district attorney, the county's corporation counsel, or the attorney general may enforce an order enjoining violation of the laws regarding the sale, possession, use, or storage of fireworks.

3. Provides that a person who sells fireworks, or possesses fireworks with intent to sell them, in violation of the law may be fined not more than $10,000 or imprisoned for not more than nine months, or both.

4. Provides that a person who is convicted of a second or subsequent violation of a state law pertaining to the possession, use, or storage of fireworks within three years of a previous violation is subject to a fine of not more than $10,000 or imprisonment of not more than nine months, or both.

5. Clarifies that it is an affirmative defense to prosecution for a violation of fireworks laws that an item which is the subject of the prosecution is exempt from the statutory definition of "fireworks."

Other changes

The bill provides that a person who sells fireworks in violation of the fireworks laws may be held liable for any bodily injury to or death of others and for any damage to the property of others that is caused by the use of the fireworks.

The bill also repeals the special treatment of fireworks seized by a law enforcement official and instead makes these fireworks subject to the procedures that generally apply to seized property.

Because this bill creates a new crime or revises a penalty for an existing crime, the Joint Review Committee on Criminal Penalties may be requested to prepare a report concerning the proposed penalty and the costs or savings that are likely to result if the bill is enacted.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB438, s. 1 Section 1. 20.143 (3) (j) of the statutes is amended to read:

AB438,5,8 20.143 (3) (j) Safety and building operations. The amounts in the schedule for the purposes of chs. 101, 145, and 168 and ss. 167.10, 236.12 (2) (a), 236.13 (1) (d) and (2m), and 236.335. All moneys received under ch. 145, ss. 101.177 (4) (a) 4., 101.178, 101.19, 101.63 (9), 101.654 (3), 101.73 (12), 101.82 (4), 101.9205 (3), 101.9208 (1) (b), 101.9213 (8), 101.935, 101.951 (2), 101.952 (2), 101.955 (2), 101.973 (7), 167.10 (3m), and 236.12 (7), and 2001 Wisconsin Act 16, section 9110 (3z), shall be credited to this appropriation.

AB438, s. 2 Section 2. 167.10 (2) of the statutes is amended to read:

AB438,5,11 167.10 (2) Sale. No A person may sell fireworks or possess fireworks with intent to sell fireworks, except them only as follows:

AB438,5,13 (a) To Fireworks may be sold to a person holding a permit under sub. (3) (c); (a) or (3g).

AB438,5,14 (b) To Fireworks may be sold to a city, village, or town; or.

AB438,5,15 (c) For Fireworks may be sold for a purpose specified under sub. (3) (b) 2. to 6.

AB438, s. 3 Section 3 . 167.10 (2) (d) of the statutes is created to read:

AB438,5,21 167.10 (2) (d) A fireworks wholesaler licensed under sub. (3m) (b) may sell fireworks to a person who is physically located outside of this state at the time the sale is made, at wholesale to a fireworks wholesaler licensed under sub. (3m) (b) or to a person registered with the department of commerce under sub. (3m) (c), or as authorized under pars. (a) to (c).

AB438, s. 4 Section 4. 167.10 (3) (title) of the statutes is amended to read:

AB438,6,2 167.10 (3) (title) Use and possession; displays.

AB438, s. 5 Section 5. 167.10 (3) (a) of the statutes is renumbered 167.10 (3) (a) 1. and amended to read:

AB438,6,16 167.10 (3) (a) 1. No Except as provided in par. (b) and sub. (3g), a person may possess or use fireworks without only for the purpose of conducting a display pursuant to a user's fireworks display permit obtained by the person directly from the mayor of the city, president of the village or chairperson of the town city, village, or town in which the possession or use display is to occur or from an official or employee of that municipality designated by the mayor, president or chairperson. No person may use fireworks or a device listed under sub. (1) (e) to (g) or (i) to (n) while attending a fireworks display for which a permit has been issued to a person listed under par. (c) 1. to 5. or under par. (c) 6. if the display is open to the general public. A permit under this paragraph may be issued only by an official or employee of the city, village, or town at a location where he or she, in the normal course of municipal affairs, carries out his or her official responsibilities.

AB438, s. 6 Section 6. 167.10 (3) (a) 2. to 6. of the statutes are created to read:

AB438,6,19 167.10 (3) (a) 2. An application for a permit under this paragraph shall be made at least 20 days before the proposed date of the fireworks display.

AB438,6,23 3. An application for a permit under this paragraph shall identify a person certified by the Pyrotechnics Guild International who will be responsible for supervising the display. The application shall include the Pyrotechnics Guild International certification number of that person.