HB1326: (2nd New Title) relative to the requirements for the sale of permissible fireworks and prohibiting the retail sale of certain fireworks and establishing a study committee to examine the classification of consumer and display fireworks.

CHAPTER 247

HB 1326 – FINAL VERSION

04/22/04 1197s

04/22/04 1349s

25May2004… 1630CofC

25May2004… 1688eba

2004 SESSION

03-2278

05/01

HOUSE BILL 1326

AN ACT relative to the requirements for the sale of permissible fireworks and prohibiting the retail sale of certain fireworks and establishing a study committee to examine the classification of consumer and display fireworks.

SPONSORS: Rep. L. Christiansen, Hills 66

COMMITTEE: Criminal Justice and Public Safety

AMENDED ANALYSIS

This bill:

I. Changes the requirements for obtaining a state license to sell permissible fireworks.

II. Prohibits the retail sale of firecrackers and bottle rockets.

III. Provides the commissioner of the department of safety with rulemaking authority relative to the licensing of persons responsible for the use of flame, pyrotechnics, or special effects before an audience.

IV. Changes the meeting requirements of the permissible fireworks review committee.

V. Prohibits bonding of retail sellers of permissible fireworks.

VI. Establishes a study committee to examine the classification of consumer and display fireworks.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

04/22/04 1197s

04/22/04 1349s

25May2004… 1630CofC

25May2004… 1688eba

03-2278

05/01

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Four

AN ACT relative to the requirements for the sale of permissible fireworks and prohibiting the retail sale of certain fireworks and establishing a study committee to examine the classification of consumer and display fireworks.

Be it Enacted by the Senate and House of Representatives in General Court convened:

247:1 Permissible Fireworks; Requirements for the Sale of Permissible Fireworks. Amend RSA 160-C:3 to read as follows:

160-C:3 Requirements for the Sale of Permissible Fireworks.

I. Any person who desires to sell permissible fireworks shall apply to the municipality in which the permissible fireworks are to be sold. Such application shall be in a form prescribed by the commissioner. The licensing board of any municipality or, if one does not exist, the governing body may issue a permit to sell permissible fireworks to a person who applies, provided that the person has a valid permit for the sale of fireworks issued pursuant to Title 18 of the United States Code. No permit to sell permissible fireworks shall be issued by the governing body without the prior approval of the police chief, fire chief, and building inspector, if any, of the municipality. The municipality may charge a fee for the permit or application for permit under this section.

II. After the person has obtained a municipal permit to sell permissible fireworks, the person may apply for a state license to sell permissible fireworks. [Such application shall be in a form prescribed by the commissioner.] Upon application of any person, the commissioner or designee may issue a license authorizing the applicant to sell or market permissible fireworks in this state for not more than one year from the date of issue, provided the person has first obtained a permit to sell fireworks pursuant to RSA 160-C:3, I. The license shall bear the name, address, description, and signature of the licensee. The license shall be displayed at all times, openly and publicly, at the licensee's place of business.

II-a. Persons seeking a state license shall file an application with the commissioner which is in such form and contains such information as the commissioner may establish by rule, consistent with the purposes of this chapter.

II-b. Only individuals lawfully residing in the United States, or partnerships or limited liability companies organized under the laws of this state or authorized to transact business within the state, or corporations organized under the laws of one of the United States and currently registered to do business in New Hampshire shall be licensed under this chapter.

II-c. All license applications shall be made in the name of the proposed licensee and shall be signed and sworn to by the proposed licensee. In the case of a partnership, limited liability company, or corporate applicant, the application shall be signed and sworn to by all partners or an officer of the proposed licensee, or in the case of a limited liability company by each member if a natural person, or by a duly appointed representative of the membership if any other person, or by the manager of the limited liability company who must submit a copy of the written authorization of the limited liability company membership to sign the application.

II-d. An applicant intending to employ a trade name in the proposed business shall submit evidence with its application which demonstrates that the trade name is currently registered in New Hampshire.

II-e. A separate license application shall be filed with respect to each place of business sought by a single licensee.

II-f. The commissioner shall receive and evaluate sufficient information to identify and to evaluate the qualification of all persons with the de jure or de facto right to control the operations and policies of the proposed licensee. Among other things, license applications shall disclose fully and accurately:

(a) The applicant’s identity, the applicant’s permanent residence address in the case of an individual, and the applicant’s principal place of business.

(b) The names and addresses of any persons who own or have the right to control an interest in the proposed licensee.

(c) Any agency agreement or other contract between the applicant and third persons intended to affect the operation of the proposed business, and the identity of the third party involved.

(d) The applicant’s other business interests.

(e) The name, location, physical layout, and nature of the proposed business.

(f) All licenses issued to and all other license applications filed by the applicant and its principal owners pursuant to this chapter during the previous 5 years.

(g) The name and address of the actual manager of the proposed business and his or her qualifications to perform such work.

II-g. Corporate applicants shall disclose the names and permanent addresses of all directors, officers, and shareholders, except that corporations with more than 20 shareholders may disclose only those persons owning or controlling 5 percent or more of the outstanding shares. Limited liability company applicants shall disclose the names and permanent addresses of all members. Partnership applicants shall disclose the names and addresses of all partners, except that partnerships with more than 20 partners may disclose only those persons who are managing partners and those persons who own or control a partnership share of 5 percent of more. If the principal controlling shareholders, members, or partners are themselves owned or controlled by other persons, then the information required by this paragraph shall also be furnished for each such person until the person or persons with the ultimate legal right to control the applicant’s proposed business have been fully identified. No license shall be issued under this section to any person who has been convicted of a felony, or to any partnership, limited liability company, or corporation when a partner, director, officer, member, or any other person with a controlling interest in the operation of the business has been convicted of a felony.

II-h. The commissioner shall not issue a license under this section unless the commissioner is satisfied that:

(a) The application is complete in all respects.

(b) The applicant, and any principal controlling owners, directors, or natural persons who are members of any business entity, or officers disclosed pursuant to paragraphs II-f and II-g, are at least 21 years of age.

(c) In the case of corporate, limited liability company, or partnership applicants controlled by persons who do not reside in the United States, the proposed business would not be managed in a manner which would unduly hinder the commissioner from exercising the commissioner’s regulatory responsibilities. Inaccessibility of relevant records or unresponsiveness to inquiries which result from foreign control shall be grounds for revoking or suspending a license which has already been granted.

III. The state license may be issued to an applicant who, at the time such license is issued, possesses a permit issued in accordance with the provisions of Title 18, United States Code, governing fireworks, and a permit issued pursuant to RSA 160-C:3, I. No license shall be issued for the sale of permissible fireworks unless the applicant establishes that it will locate its business in a permanent structure which meets all applicable fire safety codes, building codes, zoning codes, and the requirements of local ordinances. No license for the sale of permissible fireworks shall be issued to any person who has been convicted of any offense involving fireworks or explosives within the 2-years prior to the application or who has been found to have violated any fireworks or explosives laws, rules, or regulations within the 2 years prior to the application. No license shall be issued to any person under 21 years of age.

IV. Buildings used for the sale of permissible fireworks shall be dedicated solely to the sale and storage of permissible fireworks and items relating to the sale and promotion of fireworks provided for in rules adopted by the commissioner pursuant to RSA 541-A and shall comply with the applicable requirements of the state fire code adopted pursuant to RSA 153:5.

V. Prior to the issuance of a state license, the department of safety may conduct a background investigation of the applicant and may conduct an inspection of the site, including all buildings, at which the permissible fireworks are to be sold or stored.

VI. If the application for a state license is denied, the reasons for such denial shall be stated in writing, in duplicate, the original of which shall be delivered to the applicant, and the copy thereof kept in the office of the department of safety.

VI-a. Any applicant denied a license under this chapter shall be granted a hearing by the commissioner, upon the applicant’s request.

VII. The fee for a license for each location shall be $1,500 per year, payable annually to the department of safety for deposit into the general fund.

VIII. No person under the age of 21 shall be engaged in the business of handling or selling any permissible fireworks; provided, however, that a person less than 21 years of age but at least 18 years of age may handle and sell permissible fireworks at a licensed sales location if he or she is under the direct supervision of a person 21 years of age or older.

IX. Any person who knowingly provides false information to the department on an application for the sale of permissible fireworks as provided in this section shall be guilty of a misdemeanor.

X. No licensee shall employ a person to handle or sell fireworks who has been convicted of any offense involving fireworks or explosives within the past 2 years or who has been found to have violated any fireworks or explosives laws, rules, or regulations within the past 2 years.

247:2 New Sections; Retail Sale of Fireworks and Bottle Rockets Prohibited; Penalty. Amend RSA 160-B by inserting after section 16-a the following new sections:

160-B:16-b Retail Sale of Firecrackers Prohibited; Penalty. The retail sale of firecrackers is prohibited. In this section, “firecracker” means a ground device firecracker as defined by the American Pyrotechnics Association in APA Standard 87-1 (2001) 3.1.3.1, as amended. Any person who violates the provisions of this section shall be guilty of a misdemeanor.

160-B:16-c Retail Sale of Bottle Rockets Prohibited; Penalty. The retail sale of bottle rockets is prohibited. In this section, “bottle rocket” means a bottle rocket as defined by the American Pyrotechnics Association in APA Standard 87-1 (2001) 3.1.2.1, as amended. Any person who violates the provisions of this section shall be guilty of a misdemeanor.

247:3 New Paragraph; Department of Safety; Rulemaking Authority; Commissioner of Safety; Regulation of Special Effects for Entertainment. Amend RSA 21-P:14 by inserting after paragraph VIII the following new paragraph:

IX. The commissioner of safety shall adopt rules, under RSA 541-A, for the licensing of persons responsible for the use of flame, pyrotechnics, or other means of special effects for entertainment, exhibition, demonstration, or simulation before a proximate audience as regulated by the state fire code adopted under RSA 153:5 and for establishing fees for such licenses.

247:4 Permissible Fireworks Review Committee; Meetings. Amend RSA 160-C:13, II to read as follows:

II. The committee shall meet at least once per calendar year, prior to October 1, and 30 days prior to any testing and approval conducted pursuant to RSA 160-C:13, III, or earlier at the discretion of the chairperson, to ensure that testing and approval guidelines are finalized, safety preparations are complete, and issues relative to the division of labor are addressed. In addition, the committee shall meet at the request of 3 or more members of the committee.

247:5 Permissible Fireworks; Rulemaking; Bond for Retail Sellers of Permissible Fireworks Prohibited. Amend RSA 160-C:4, II to read as follows:

II. Insurance[, bonding,] or other evidence of financial responsibility to be required of any person licensed under this chapter, except that no bonding requirement shall be imposed on retail sellers of permissible fireworks.

247:6 Committee Established. There is established a committee to study the classification of consumer and display fireworks.

247:7 Membership and Compensation.

I. The members of the committee shall be as follows:

(a) Four members of the house of representatives, appointed by the speaker of the house.

(b) Two members of the senate, appointed by the president of the senate.

II. Members of the committee shall receive mileage at the legislative rate when attending to the duties of the committee.

247:8 Duties. The committee shall examine the state and federal regulation of consumer and display fireworks in New Hampshire, including RSA 160-B, RSA 160-C, Saf-C 2601, and 27 C.F.R. 555. The purpose of the study shall be to propose a recodification of the applicable statutes such that RSA 160-B shall regulate display fireworks, formerly known as class B special fireworks, and RSA 160-C shall regulate consumer fireworks, formerly known as class C common fireworks, a subdivision of which shall be permissible fireworks, as selected by the permissible fireworks review committee. The committee shall solicit such information and testimony as it deems necessary to conduct the study.

247:9 Chairperson; Quorum. The members of the study committee shall elect a chairperson from among the members. The first meeting of the committee shall be called by the first-named house member. The first meeting of the committee shall be held within 45 days of the effective date of this section. Three members of the committee shall constitute a quorum.

247:10 Report. The committee shall report its findings and any proposed recodification of RSA 160-B and RSA 160-C to the speaker of the house of representatives, the senate president, the house clerk, the senate clerk, the governor, and the state library on or before November 1, 2004.

247:11 Effective Date.

I. Sections 1, 2, and 4 of this act shall take effect September 30, 2004.

II. The remainder of this act shall take effect upon its passage.

(Approved: June 15, 2004)

(Effective Date: I. Sections 1, 2, and 4 shall take effect September 30, 2004

II. Remainder shall take effect June 15, 2004.)