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Senate Bill 2686

Senate Bill sb2686

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    Florida Senate - 2004                                  SB 2686

    By Senator Lawson





    6-1571-04

  1                      A bill to be entitled

  2         An act relating to fireworks; amending s.

  3         791.001, F.S.; specifying persons and entities

  4         responsible for enforcing ch. 791, F.S.;

  5         amending s. 791.01, F.S.; providing additional

  6         definitions; amending s. 791.012, F.S.;

  7         conforming a cross-reference; amending s.

  8         791.015, F.S.; revising registration

  9         requirements; requiring a separate registration

10         for each location at which sparklers are sold;

11         increasing certain registration fees; creating

12         s. 791.016, F.S.; providing for issuance of

13         cease and desist orders; creating s. 791.017,

14         F.S.; providing for administrative fines;

15         creating s. 791.018, F.S.; providing for

16         suspension or revocation of registration and

17         grounds therefor; creating s. 791.019, F.S.;

18         providing duration of suspensions and

19         revocations; amending s. 791.02, F.S.;

20         providing for state issuance of permits for

21         displays in the absence of a local mechanism;

22         prohibiting the sale or delivery of sparklers

23         to minors; prohibiting sales from motorized or

24         movable apparatus; creating s. 791.021, F.S.;

25         prescribing guidelines for the sale of

26         sparklers; amending s. 791.04, F.S.;

27         prescribing guidelines on the wholesale sale of

28         fireworks; creating s. 791.041, F.S.; requiring

29         records of sales to be kept and prescribing

30         duties of sellers; amending s. 791.05, F.S.;

31         revising provisions and procedures relating to

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    Florida Senate - 2004                                  SB 2686
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 1         forfeiture of contraband fireworks; amending s.

 2         791.055, F.S.; providing restrictions on

 3         storage of sparklers and fireworks; amending s.

 4         791.06, F.S.; providing penalties for

 5         violations, including enhanced penalties for

 6         second and subsequent violations; creating s.

 7         791.061, F.S.; providing for injunctive relief;

 8         amending s. 791.07, F.S.; prescribing

 9         additional guidelines on agricultural and fish

10         hatchery use of fireworks; creating s. 791.08,

11         F.S.; declaring that the state has not

12         preempted the field of fireworks regulation;

13         requiring that local ordinances and rules must

14         be more stringent than state law; providing an

15         effective date.

16  

17  Be It Enacted by the Legislature of the State of Florida:

18  

19         Section 1.  Section 791.001, Florida Statutes, is

20  amended to read:

21         791.001  Application and enforcement.--This chapter

22  shall be applied uniformly throughout the state. The State

23  Fire Marshal or a designated agent under his or her authority,

24  any sheriff or sheriff's deputy, any other law enforcement

25  agency or law enforcement officer, or any certified firesafety

26  inspector charged with the enforcement of the laws of this

27  state or any state agency rule, county or municipal ordinance,

28  or code provision has jurisdiction to enforce this chapter.

29  Enforcement of this chapter shall remain with local law

30  enforcement departments and officials charged with the

31  enforcement of the laws of the state.

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    Florida Senate - 2004                                  SB 2686
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 1         Section 2.  Section 791.01, Florida Statutes, is

 2  amended to read:

 3         791.01  Definitions.--As used in this chapter, the

 4  term:

 5         (1)  "Authority having jurisdiction" means the state;

 6  any county, municipality, or special district; or any local or

 7  other regional department, bureau, or individual such as a

 8  fire chief, fire marshal, administrative head of a fire

 9  prevention bureau, law enforcement officer, building official,

10  or other person having statutory authority to enforce the laws

11  of this state or any state agency rule, county or municipal

12  ordinance, or code provision.

13         (2)  "Distributor of fireworks" means any person or

14  organization engaged in the business of selling fireworks.

15         (3)(1)  "Distributor of sparklers" means any person or

16  organization engaged in the business of selling sparklers to a

17  wholesaler.

18         (4)(2)  "Division" means the Division of the State Fire

19  Marshal of the Department of Financial Services.

20         (5)(3)  "Explosive compound" means any chemical

21  compound, mixture, or device the primary or common purpose of

22  which is to function by the substantially instantaneous

23  release of gas and heat.

24         (6)(4)(a)  "Fireworks" means and includes any

25  combustible or explosive composition or substance or

26  combination of substances or, except as hereinafter provided,

27  any article prepared for the purpose of producing a visible or

28  audible effect by combustion, explosion, deflagration, or

29  detonation.  The term includes blank cartridges and toy

30  cannons in which explosives are used, the type of balloons

31  which require fire underneath to propel them, firecrackers,

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    Florida Senate - 2004                                  SB 2686
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 1  torpedoes, skyrockets, roman candles, dago bombs, and any

 2  fireworks containing any explosives or flammable compound or

 3  any tablets or other device containing any explosive

 4  substance.

 5         (b)  "Fireworks" does not include sparklers approved by

 6  the division pursuant to s. 791.013; toy pistols, toy canes,

 7  toy guns, or other devices in which paper caps containing

 8  twenty-five hundredths grains or less of explosive compound

 9  are used, providing they are so constructed that the hand

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

11  explosion; and toy pistol paper caps which contain less than

12  twenty hundredths grains of explosive mixture, the sale and

13  use of which shall be permitted at all times.

14         (c)  "Fireworks" also does not include the following

15  novelties and trick noisemakers:

16         1.  A snake or glow worm, which is a pressed pellet of

17  not more than 10 grams of pyrotechnic composition that

18  produces a large, snakelike ash which expands in length as the

19  pellet burns and that does not contain mercuric thiocyanate.

20         2.  A smoke device, which is a tube or sphere

21  containing not more than 10 grams of pyrotechnic composition

22  that, upon burning, produces white or colored smoke as the

23  primary effect.

24         3.  A trick noisemaker, which is a device that produces

25  a small report intended to surprise the user and which

26  includes:

27         a.  A party popper, which is a small plastic or paper

28  device containing not more than 16 milligrams of explosive

29  composition that is friction sensitive, which is ignited by

30  pulling a string protruding from the device, and which expels

31  a paper streamer and produces a small report.

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    Florida Senate - 2004                                  SB 2686
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 1         b.  A booby trap, which is a small tube with a string

 2  protruding from both ends containing not more than 16

 3  milligrams of explosive compound, which is ignited by pulling

 4  the ends of the string, and which produces a small report.

 5         c.  A snapper, which is a small, paper-wrapped device

 6  containing not more than four milligrams of explosive

 7  composition coated on small bits of sand, and which, when

 8  dropped, explodes, producing a small report.  A snapper may

 9  not contain more than 250 milligrams of total sand and

10  explosive composition.

11         d.  A trick match, which is a kitchen or book match

12  which is coated with not more than 16 milligrams of explosive

13  or pyrotechnic composition and which, upon ignition, produces

14  a small report or shower of sparks.

15         e.  A cigarette load, which is a small wooden peg that

16  has been coated with not more than 16 milligrams of explosive

17  composition and which produces, upon ignition of a cigarette

18  containing one of the pegs, a small report.

19         f.  An auto burglar alarm, which is a tube which

20  contains not more than 10 grams of pyrotechnic composition

21  that produces a loud whistle or smoke when ignited and which

22  is ignited by use of a squib.  A small quantity of explosive,

23  not exceeding 50 milligrams, may also be used to produce a

24  small report.

25  

26  The sale and use of items listed in this paragraph are

27  permitted at all times.

28         (7)  "Fixed location" means a building or structure

29  that is intended to remain in place for a period of more than

30  180 consecutive days.

31  

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    Florida Senate - 2004                                  SB 2686
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 1         (8)  "Manufacturer of fireworks" means any person or

 2  organization engaged in the manufacture or construction of

 3  fireworks in this state.

 4         (9)(5)  "Manufacturer of sparklers" means any person or

 5  organization engaged in the manufacture or construction of

 6  sparklers in this state.

 7         (10)  "Organization" means any club, group,

 8  association, church or other religious entity, nonprofit

 9  corporation, or similar entity.

10         (11)  "Person" includes any individual person and any

11  firm, sole proprietorship, partnership, corporation, limited

12  liability corporation or partnership, professional

13  association, or other similar entity.

14         (12)(6)  "Retailer" means any person who, at a fixed

15  location place of business, is engaged in selling sparklers to

16  consumers at retail.

17         (13)(7)  "Seasonal retailer" means any person engaged

18  in the business of selling sparklers at retail in this state

19  from June 20 through July 5 and from December 10 through

20  January 2 of each year.

21         (14)(8)  "Sparkler" means a device which emits showers

22  of sparks upon burning, does not contain any explosive

23  compounds, does not detonate or explode, is hand held or

24  ground based, cannot propel itself through the air, and

25  contains not more than 100 grams of the chemical compound

26  which produces sparks upon burning.  Any sparkler that is not

27  approved by the division is classified as fireworks.

28         (15)  "Wholesaler of fireworks" means any person or

29  organization engaged in the business of selling fireworks to

30  another wholesaler, a distributor, or a manufacturer

31  

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    Florida Senate - 2004                                  SB 2686
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 1  registered under this chapter or for agricultural or public

 2  display purposes.

 3         (16)(9)  "Wholesaler of sparklers" means any person or

 4  organization engaged in the business of selling sparklers to a

 5  retailer.

 6         Section 3.  Section 791.012, Florida Statutes, is

 7  amended to read:

 8         791.012  Minimum fireworks safety standards.--The

 9  outdoor display of fireworks in this state shall be governed

10  by the National Fire Protection Association (NFPA) 1123, Code

11  for Fireworks Display, 1995 Edition, approved by the American

12  National Standards Institute.  Any state, county, or municipal

13  law, rule, or ordinance may provide for more stringent

14  regulations for the outdoor display of fireworks, but in no

15  event may any such law, rule, or ordinance provide for less

16  stringent regulations for the outdoor display of fireworks.

17  The division shall adopt promulgate rules to carry out the

18  provisions of this section.  The Code for Fireworks Display

19  shall not govern the display of any fireworks on private,

20  residential property and shall not govern the display of those

21  items included under s. 791.01(6)(b) and (c) s. 791.01(4)(b)

22  and (c) and authorized for sale thereunder.

23         Section 4.  Section 791.015, Florida Statutes, is

24  amended to read:

25         791.015  Registration of manufacturers, distributors,

26  and wholesalers of sparklers or fireworks, and retailers of

27  sparklers.--

28         (1)  REGISTRATION REQUIREMENTS.--It is unlawful for any

29  organization or individual to engage in the business of

30  manufacturing, distributing, or selling at wholesale or retail

31  any firework or sparkler except as provided in this section.

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    Florida Senate - 2004                                  SB 2686
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 1  Any manufacturer, distributor, or wholesaler of sparklers or

 2  fireworks and any, retailer, or seasonal retailer of sparklers

 3  who wishes to do business in this state or to otherwise sell,

 4  ship, or assign for sale its products in this state must

 5  register annually with the division on forms prescribed by the

 6  division. A manufacturer, distributor, wholesaler, retailer,

 7  or seasonal retailer must submit a separate registration form

 8  and a separate registration fee for each location where

 9  sparklers will be sold. A manufacturer, distributor, or

10  wholesaler who wishes to engage in the business of

11  manufacturing, distributing, or selling fireworks to the

12  extent allowed in this chapter must submit a separate

13  registration form and a separate registration fee for each

14  location where fireworks will be manufactured or sold.

15  Registration certificates issued by the division shall be

16  displayed on the premises and made available for immediate

17  inspection by the authority having jurisdiction or the

18  division. A person may not alter, deface, or copy a

19  certificate of registration. Any retailer who sells sparklers

20  at more than one retail location may submit one registration

21  form for all such locations but must provide the address of

22  each location with the registration form; however, any

23  retailer may submit multiple registration forms.

24         (2)  REGISTRATION FORM.--The registration form filed

25  with the division must be notarized and must include the

26  following information: name of individual, if certificate is

27  to be held in an individual capacity; business name; address;

28  telephone number; officers, if the business is a corporation;

29  and an individual designated as a contact person. The form for

30  application for registration by the division must be

31  

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    Florida Senate - 2004                                  SB 2686
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 1  accompanied by evidence of registration with the Department of

 2  Revenue under chapter 212.

 3         (3)  FEES.--

 4         (a)  Each manufacturer, distributor, or wholesaler must

 5  pay an annual registration fee to be set by the division not

 6  to exceed $1,000 for each manufacturer, distributor, or

 7  wholesale location registered. Each seasonal retailer must pay

 8  an annual registration fee to be set by the division not to

 9  exceed $200 for each seasonal retailer location registered.

10  Each retailer shall pay an annual registration fee to be set

11  by the division not to exceed $25 $15 for each retail location

12  registered.  Each certificateholder wishing to have a

13  duplicate certificate issued for one which is lost or to

14  reflect a change of mailing address shall request such

15  duplicate in writing and shall pay a fee of $15 $5. A

16  duplicate may not be issued to indicate a change in business

17  location. A change in business location requires a new

18  application for registration and fee.

19         (b)  Revenue from registration fee payments shall be

20  deposited in the Insurance Regulatory Trust Fund for the

21  purposes of implementing the registration and testing

22  provisions of this chapter.

23         (4)  RULES.--The State Fire Marshal may adopt rules

24  prescribing registration forms required by this section.

25         Section 5.  Section 791.016, Florida Statutes, is

26  created to read:

27         791.016  Procedures for cease and desist orders;

28  administrative fine.--

29         (1)  Any time the division has reason to believe that

30  any person is or has been violating this chapter or any rule

31  adopted pursuant to this chapter, it shall determine the

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    Florida Senate - 2004                                  SB 2686
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 1  matter by issuing a notice of intent to issue a cease and

 2  desist order and provide an opportunity for a hearing and all

 3  other requirements of chapter 120.

 4         (2)  If the division determines that the acts

 5  complained of are in violation of any provision of this

 6  chapter, or any rule adopted pursuant to this chapter, it

 7  shall issue to a person charged with the violation a final

 8  order requiring such persons to cease and desist from such

 9  violation or imposing an administrative fine, or both.

10         (3)  This section shall be enforced pursuant to chapter

11  120.

12         Section 6.  Section 791.017, Florida Statutes, is

13  created to read:

14         791.017  Administrative fines.--

15         (1)  If any person violates any provision of this

16  chapter or any rule adopted pursuant to this chapter, or

17  violates any cease and desist order, the division may impose

18  an administrative fine, not to exceed $1,000 for each

19  violation, or suspend or revoke the certificate of

20  registration issued.

21         (2)  The division may allow the certificateholder a

22  reasonable time, not to exceed 30 days, to pay the penalty in

23  its entirety to the division. If the certificateholder fails

24  to pay the penalty in its entirety within the period allowed,

25  the division shall revoke the certificates held.

26         (3)  If a cease and desist order has been issued, each

27  day the cease and desist order is violated constitutes a

28  separate violation for purposes of assessing an administrative

29  fine.

30  

31  

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    Florida Senate - 2004                                  SB 2686
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 1         (4)  If the violation is based on an unlawful sale,

 2  each sale constitutes a separate violation for purposes of

 3  assessing an administrative fine.

 4         (5)  The maximum administrative fine imposed on any

 5  person or organization may not exceed $500,000.

 6         Section 7.  Section 791.018, Florida Statutes, is

 7  created to read:

 8         791.018  Grounds for suspension or revocation of

 9  registration certificate for manufacturers, distributors,

10  wholesalers, and retailers.--

11         (1)  The division may suspend or revoke the

12  registration certificate of manufacturers, distributors,

13  wholesalers, and retailers for one or more of the following

14  grounds:

15         (a)  Material misstatement, misrepresentation, or fraud

16  in obtaining the registration certificate or in attempting to

17  obtain a registration certificate.

18         (b)  Wilful use of a registration certificate to

19  circumvent any requirement or prohibition in this chapter.

20         (c)  Fraudulent or dishonest practices in the conduct

21  of business under the authority of the registration

22  certificate.

23         (d)  Violation of or failure to comply with any order

24  or rule of the division or any provision of this chapter.

25         (2)  This section shall be enforced pursuant to chapter

26  120.

27         Section 8.  Section 791.019, Florida Statutes, is

28  created to read:

29         791.019  Duration of suspension or revocation.--

30         (1)  The division shall, in its order suspending the

31  registration certificate of an individual, firm, partnership,

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    Florida Senate - 2004                                  SB 2686
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 1  association, group, or corporation, specify the period during

 2  which the suspension is to be effective; but such period may

 3  not exceed 2 years. The registration certificate shall remain

 4  suspended during the period specified, subject, to any

 5  rescission or modification of the order by the division or

 6  modification or reversal thereof by the court prior to

 7  expiration of the suspension period. A registration

 8  certificate that has been suspended may not be reinstated

 9  except upon request for such reinstatement; but the division

10  may not grant such reinstatement if it finds that the

11  circumstance or circumstances for which the registration

12  certificate was suspended or revoked still exist or are likely

13  to recur.

14         (2)  A person or organization holding a registration

15  certificate revoked by the division may not apply for another

16  registration certificate under this chapter within 2 years

17  after the effective date of such revocation or, if judicial

18  review of such revocation is sought, within 2 years after the

19  date of the final court order or decree affirming the

20  revocation order.

21         (3)  The division may not issue a registration

22  certificate to any person or organization whose registration

23  certificate has been revoked on two separate occasions.

24         (4)  During the period of suspension, or after

25  revocation of the registration certificate, the former

26  certificateholder may not engage in or attempt or profess to

27  engage in any transaction or business for which a registration

28  certificate is required by this chapter.

29         Section 9.  Section 791.02, Florida Statutes, is

30  amended to read:

31  

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 1         791.02  Sale of fireworks regulated; rules and

 2  regulations.--

 3         (1)  Except as hereinafter provided it is unlawful for

 4  any person or organization, firm, copartnership, or

 5  corporation to offer for sale, expose for sale, sell at

 6  retail, or use or explode any fireworks; provided that the

 7  board of county commissioners shall have power to adopt

 8  reasonable rules and regulations for the granting of permits

 9  for supervised public display of fireworks by fair

10  associations, amusement parks, and other organizations or

11  groups of individuals when such public display is to take

12  place outside of any municipality; provided, further, that the

13  governing body of any municipality shall have power to adopt

14  reasonable rules and regulations for the granting of permits

15  for supervised public display of fireworks within the

16  boundaries of any municipality. Every such display shall be

17  handled by a competent operator to be approved by the chiefs

18  of the police and fire departments of the municipality in

19  which the display is to be held, and shall be of such a

20  character, and so located, discharged, or fired as in the

21  opinion of the chief of the fire department, after proper

22  inspection, shall not be hazardous to property or endanger any

23  person.  Application for permits shall be made in writing at

24  least 15 days in advance of the date of the display. If the

25  local authority licensing jurisdiction does not have a permit

26  process for the public display of fireworks, applications

27  shall be made to the State Fire Marshal. After such privilege

28  shall have been granted, sales, possession, use, and

29  distribution of fireworks for such display shall be lawful for

30  that purpose only.  No permit granted hereunder shall be

31  

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 1  transferable. Any public display of fireworks must be

 2  conducted in compliance with s. 791.012.

 3         (2)  A sparkler or other product authorized for sale

 4  under this chapter may not be sold or shipped to any person

 5  younger than 18 years of age. A sparkler or other product

 6  authorized for sale under this chapter may not be sold by a

 7  retailer or seasonal retailer unless the product was obtained

 8  from a manufacturer, distributor, or wholesaler registered

 9  with the division pursuant to s. 791.015.  Each retailer and

10  seasonal retailer shall keep, at every location where

11  sparklers are sold, a copy of an invoice or other evidence of

12  purchase from the manufacturer, distributor, or wholesaler,

13  which states the registration certificate number for the

14  particular manufacturer, distributor, or wholesaler and the

15  specific items covered by the invoice.  Each seasonal retailer

16  shall, in addition, exhibit a copy of his or her registration

17  certificate at each retail or seasonal retail location. Retail

18  sales may not be made from any type of motorized or movable

19  apparatus. Sales from tents that meet all applicable codes and

20  fire regulations are allowed.

21         Section 10.  Section 791.021, Florida Statutes, is

22  created to read:

23         791.021  Sale of sparklers.--

24         (1)  A person, organization, manufacturer, distributor,

25  wholesaler, retailer, or seasonal retailer may not purchase,

26  sell, or solicit to sell sparklers except in conformance with

27  this chapter.

28         (2)  It is the responsibility of the person,

29  organization, manufacturer, distributor, or wholesaler to

30  determine that the purchaser is registered with the division.

31  

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 1         (3)  It is the responsibility of the retailer or

 2  seasonal retailer of sparklers to determine that a purchaser

 3  is at least 18 years of age, evidenced by the purchaser

 4  presenting a valid driver's license or a valid state

 5  identification card issued by the Department of Highway Safety

 6  and Motor Vehicles.

 7         Section 11.  Section 791.04, Florida Statutes, is

 8  amended to read:

 9         791.04  Sale at wholesale, etc., exempted.--

10         (1)  A Nothing in this chapter shall be construed to

11  prohibit any manufacturer, distributor, or wholesaler of

12  fireworks who has registered with the division pursuant to s.

13  791.015 may to sell at wholesale any such fireworks as are not

14  herein prohibited to any manufacturer, distributor, or

15  wholesaler of fireworks who has registered with the division

16  and holds a current certificate of registration.

17         (2)  Fireworks shall be shipped or transported directly

18  out of state or stored in compliance with s. 791.055 by the

19  manufacturer, distributor, or wholesaler of fireworks.

20         (3)  Sale of fireworks may be made to a person holding

21  a public display permit issued by the authority having

22  jurisdiction for the purpose of conducting a public display of

23  fireworks in compliance with s. 791.012. Transport must be by

24  a bonded commercial carrier or by a person employed by the

25  manufacturer, distributor, or wholesaler of fireworks.

26  Transport must be accompanied by an invoice or bill of lading

27  identifying the manufacturer, distributor, or wholesaler of

28  fireworks with the current certificate of registration number

29  on the invoice or bill of lading and an itemized list of the

30  contents of the shipment.; to prohibit the sale of any kind of

31  fireworks at wholesale between manufacturers, distributors,

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 1  and wholesalers who have registered with the division pursuant

 2  to s. 791.015; to prohibit the sale of any kind of fireworks

 3  provided the same are to be shipped directly out of state by

 4  such manufacturer, distributor, or wholesaler; to prohibit the

 5  sale of fireworks to be used by a person holding a permit from

 6  any board of county commissioners at the display covered by

 7  such permit; or to prohibit the use of fireworks by railroads

 8  or other transportation agencies for signal purposes or

 9  illumination or when used in quarrying or for blasting or

10  other industrial use, or the sale or use of blank cartridges

11  for a show or theater, or for signal or ceremonial purposes in

12  athletics or sports, or for use by military organizations, or

13  organizations composed of the Armed Forces of the United

14  States; provided, nothing in this chapter shall be construed

15  as barring the operations of manufacturers, duly licensed,

16  from manufacturing, experimenting, exploding, and storing such

17  fireworks in their compounds or proving grounds.

18         Section 12.  Section 791.041, Florida Statutes, is

19  created to read:

20         791.041  Maintenance of records and sales of fireworks

21  by manufacturers, distributors, and wholesalers;

22  inspections.--

23         (1)  A person, organization, manufacturer, distributor,

24  or wholesaler may not purchase, sell, or solicit to sell

25  fireworks except in conformance with this chapter.

26         (2)  Each sale or transaction must be evidenced by an

27  invoice or sales ticket that bears the name, address, and

28  certificate of registration number of the purchaser or, in the

29  case of a sale conducted for public display, a copy of the

30  permit issued by the authority having jurisdiction, the date

31  of the sale, the products sold, and the quantity sold. All

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 1  invoices and sales tickets shall be maintained by the

 2  manufacturer, distributor, or wholesaler of fireworks and a

 3  copy provided to the purchaser.

 4         (3)  Such records shall be maintained for 5 years,

 5  subject to examination by the division or any official of this

 6  state with statutory authority pursuant to s. 791.001.

 7         (4)  A person may not knowingly withhold information or

 8  make any false or fictitious entry or misrepresentation upon

 9  any sales invoice, sales ticket, or account of inventories.

10         (5)  It is the responsibility of the manufacturer,

11  distributor, or wholesaler of fireworks to determine that a

12  purchaser is at least 18 years of age, evidenced by the

13  purchaser presenting a valid driver's license or a valid state

14  identification card issued by the Department of Highway Safety

15  and Motor Vehicles.

16         (6)  It is the responsibility of the manufacturer,

17  distributor, or wholesaler of fireworks to determine, when

18  selling fireworks pursuant to s. 791.04, that the purchaser is

19  registered, pursuant to s. 791.015, evidenced by the purchaser

20  presenting a valid certificate of registration issued by the

21  division. If the purchase of fireworks is for public display,

22  the purchase must be evidenced by the purchaser presenting a

23  public display permit issued by the authority having

24  jurisdiction. Agricultural purchases shall be in compliance

25  with s. 791.07.

26         Section 13.  Section 791.05, Florida Statutes, is

27  amended to read:

28         791.05  Contraband; seizure, forfeiture, and disposal

29  of illegal fireworks.--

30         (1)  All fireworks or sparklers that are handled,

31  delivered, possessed, manufactured, or distributed contrary to

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 1  ny provision of this chapter and all such fireworks or

 2  sparklers the lawful possession of which is not established or

 3  title to which cannot be ascertained are declared contraband

 4  and are subject to seizure and confiscation by any person or

 5  law enforcement agency whose duty it is to enforce this

 6  chapter.

 7         (2)  The state attorney within whose jurisdiction the

 8  unlawful fireworks or sparklers have been seized or any such

 9  attorney as is employed by the seizing law enforcement agency

10  shall promptly proceed against the contraband fireworks and

11  show cause in the circuit court within the jurisdiction in

12  which the seizure or offense occurred and may have such

13  contraband article or articles forfeited to the law

14  enforcement agency making the seizure upon showing proof that

15  the contraband fireworks were being used or exist in violation

16  of this chapter.

17         (3)  Any fireworks seized as evidence may be sample

18  tested and weighed by the seizing agency after the seizure.

19  Any such sample and analysis thereof may be admitted into

20  evidence in any civil or criminal action for the purpose of

21  proving the nature, composition, and weight of the fireworks.

22  In addition, the seizing agency may photograph or videotape,

23  for use at trial, the fireworks seized. Except for fireworks

24  retained by the seizing agency for sample testing, analysis,

25  and evidence, upon a final determination that the seized

26  fireworks were being used or exist in violation of this

27  chapter, the circuit court having jurisdiction shall order

28  such fireworks forfeited and destroyed. The method of

29  destruction or disposal of such fireworks shall be at the

30  discretion of the seizing agency.

31  

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    Florida Senate - 2004                                  SB 2686
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 1         (4)  The final order of forfeiture by the court shall

 2  perfect in the seizing law enforcement agency all rights,

 3  title, and interest in and to such fireworks and shall relate

 4  back to the date of seizure.

 5         (5)  The court may include in its forfeiture order a

 6  provision that the owner or holder of the contraband fireworks

 7  pay an assessment to cover the cost of disposal of contraband,

 8  including attorney's fees and costs, and any costs incurred by

 9  the arresting agency in storing the contraband. Each sheriff,

10  or his or her appointee, or any other police officer, shall

11  seize, take, remove or cause to be removed at the expense of

12  the owner, all stocks of fireworks or combustibles offered or

13  exposed for sale, stored, or held in violation of this

14  chapter.

15         Section 14.  Section 791.055, Florida Statutes, is

16  amended to read:

17         791.055  Restrictions upon storage of sparklers or

18  fireworks.--The storage of sparklers or fireworks in this

19  state is governed by the National Fire Protection Association

20  1124 Code as adopted by rule of the Department of Financial

21  Services.

22         (1)  Sparklers shall not be stored or kept for sale in

23  any store:

24         (a)  In which paints, oils, or varnishes are

25  manufactured or kept for use or sale unless the paints, oils,

26  or varnishes are in unbroken containers.

27         (b)  In which resin, turpentine, gasoline, or flammable

28  substances or substances which may generate vapors are used,

29  stored, or offered for sale unless the resin, turpentine,

30  gasoline, or substances are in unbroken containers.

31  

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    Florida Senate - 2004                                  SB 2686
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 1         (c)  In which there is not at least one approved

 2  chemical fire extinguisher ready, available, and equipped for

 3  use in extinguishing fires.

 4         (2)  When sparklers are in storage to be offered for

 5  sale at retail, a sign shall be conspicuously displayed over

 6  the entrance to the room in which the sparklers are stored,

 7  which sign reads:  "CAUTION SPARKLERS-NO SMOKING."  No person

 8  shall be in such room while in possession of a lighted cigar,

 9  cigarette, or pipe.

10         Section 15.  Section 791.06, Florida Statutes, is

11  amended to read:

12         791.06  Penalties.--

13         (1)  Any person or organization that violates any

14  provision of s. 791.015, s. 791.02, s. 791.021, s. 791.04, or

15  s. 791.041 commits a misdemeanor of the first degree,

16  punishable as provided in s. 775.082 or s. 775.083.

17         (2)  Any person or organization that violates any

18  provision of s. 791.015, s. 791.02, s. 791.021, s. 791.04, or

19  s. 791.041 for a second or subsequent time commits a felony of

20  the third degree, punishable as provided in s. 775.082, s.

21  775.083, or s. 775.084. Any firm, copartnership, or

22  corporation violating the provisions of this chapter shall be

23  guilty of a misdemeanor of the first degree, punishable as

24  provided in s. 775.083 or, in the case of individuals, the

25  members of a partnership and the responsible officers and

26  agents of an association or corporation, punishable as

27  provided in s. 775.082 or s. 775.083.

28         Section 16.  Section 791.061, Florida Statutes, is

29  created to read:

30         791.061  Injunction.--In addition to the penalties and

31  other enforcement provisions of this chapter, if any person

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    Florida Senate - 2004                                  SB 2686
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 1  engaged in any activity prohibited by this chapter violates

 2  any provision of this chapter or any rule adopted pursuant to

 3  this chapter, the division may resort to proceedings for

 4  injunctive relief in the circuit court of the county in which

 5  such person resides or has his or its principal place of

 6  business and therein apply for such temporary or permanent

 7  orders as the division deems necessary to restrain such person

 8  from engaging in any such activities, until such person has

 9  complied with the provisions of this chapter and such rules.

10         Section 17.  Section 791.07, Florida Statutes, is

11  amended to read:

12         791.07  Agricultural and fish hatchery use.--

13         (1)  Nothing in This chapter does not shall prohibit

14  the importation, purchase, sale, or use of fireworks used or

15  to be used solely and exclusively in frightening birds from

16  agricultural works and fish hatcheries; and such use shall be

17  governed entirely by the rules prescribed by the Department of

18  Agriculture and Consumer Services.

19         (2)  Any person who is engaged in agricultural works or

20  who operates a fish hatchery may use fireworks solely and

21  exclusively for the purpose of frightening birds from doing

22  harm to such person's agricultural works or fish hatchery

23  operation; however, such person must first file with the

24  sheriff of the county or the authority having jurisdiction in

25  the county in which the person is engaged in agricultural

26  works or the operation of a fish hatchery a sworn affidavit in

27  writing that he or she is engaged in agricultural works,

28  describing the nature of such, or that he or she operates a

29  fish hatchery, describing the nature of such, and desires to

30  use fireworks to frighten birds from harming the agricultural

31  works or fish hatchery operation and that fireworks will be

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    Florida Senate - 2004                                  SB 2686
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 1  used solely and exclusively for that purpose. The sheriff of

 2  the county or the authority having jurisdiction, upon

 3  determining that the sworn affidavit is sufficient and the

 4  request is valid, shall issue a permit, on a form provided by

 5  the division, to the applicant. The permit must identify the

 6  applicant and the quantity of fireworks to be purchased and

 7  possessed. A copy of the permit shall be retained by the

 8  manufacturer, distributor, or wholesaler making the sale as

 9  part of its recordkeeping requirement pursuant to s. 791.041,

10  and a copy shall be maintained by the applicant with the

11  fireworks covered under the permit.

12         (3)  Falsification of any affidavit or permit provided

13  for in this section or providing false information in such

14  sworn affidavit is a misdemeanor, of the first degree,

15  punishable as provided in s. 775.082 or s. 775.083.

16  Falsification of any affidavit or permit provided for in this

17  section includes aiding and abetting such falsification or

18  selling fireworks when the seller knows or has reason to

19  believe that the permit is falsified.

20         Section 18.  Section 791.08, Florida Statutes, is

21  created to read:

22         791.08  Nonpreemption.--The state does not preempt the

23  regulation of fireworks and sparklers as provided in this

24  chapter. Any authority having jurisdiction may enact any

25  ordinance or adopt any rule related to this chapter if such

26  ordinance or rule is more stringent, or provides a higher

27  degree of safety, than provided in this chapter.

28         Section 19.  This act shall take effect July 1, 2004.

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    Florida Senate - 2004                                  SB 2686
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 1            *****************************************

 2                          SENATE SUMMARY

 3    Provides a comprehensive review of statutes relating to
      registration and regulation of manufacturers and sellers
 4    of fireworks and licensing and permitting requirements.
      (See bill for details.)
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