Senate Bill sb0746

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    Florida Senate - 2005                                   SB 746

    By Senator Lawson





    6-88-05

  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 for manufacturers, distributors,

10         and wholesalers of sparklers or fireworks and

11         retailers of sparklers; requiring a separate

12         registration for each location at which

13         sparklers are sold; increasing certain

14         registration fees; creating s. 791.016, F.S.;

15         providing for issuance of cease and desist

16         orders; creating s. 791.017, F.S.; providing

17         for administrative fines; creating s. 791.018,

18         F.S.; providing for suspension or revocation of

19         registration and grounds therefor; creating s.

20         791.019, F.S.; providing duration of

21         suspensions and revocations; amending s.

22         791.02, F.S.; providing for state issuance of

23         permits for displays in the absence of a local

24         mechanism; prohibiting the sale or delivery of

25         sparklers to minors; prohibiting sales from

26         motorized or movable apparatus; creating s.

27         791.021, F.S.;  prescribing guidelines for the

28         sale of sparklers; amending s. 791.04, F.S.;

29         prescribing guidelines on the wholesale sale of

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

31         records of sales to be kept and prescribing

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

 2         revising provisions and procedures relating to

 3         forfeiture of contraband fireworks; authorizing

 4         an assessment of attorney's fees and costs;

 5         amending s. 791.055, F.S.; providing

 6         restrictions on the storage of sparklers and

 7         fireworks; amending s. 791.06, F.S.; providing

 8         penalties for violations, including enhanced

 9         penalties for second and subsequent violations;

10         creating s. 791.061, F.S.; providing for

11         injunctive relief; amending s. 791.07, F.S.;

12         prescribing additional guidelines on

13         agricultural and fish hatchery use of

14         fireworks; creating s. 791.08, F.S.; declaring

15         that the state has not preempted the field of

16         fireworks regulation; requiring that local

17         ordinances and rules must be more stringent

18         than state law; providing an effective date.

19  

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

21  

22         Section 1.  Section 791.001, Florida Statutes, is

23  amended to read:

24         791.001  Application and enforcement.--This chapter

25  shall be applied uniformly throughout the state. The State

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

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

28  agency or law enforcement officer, or any certified firesafety

29  inspector charged with enforcing the laws of this state or any

30  state agency rule, county or municipal ordinance, or code

31  provision has jurisdiction to enforce this chapter.

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 1  Enforcement of this chapter shall remain with local law

 2  enforcement departments and officials charged with the

 3  enforcement of the laws of the state.

 4         Section 2.  Section 791.01, Florida Statutes, is

 5  amended to read:

 6         791.01  Definitions.--As used in this chapter, the

 7  term:

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

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

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

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

12  prevention bureau, law enforcement officer, building official,

13  or other person having statutory authority to enforce the laws

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

15  ordinance, or code provision.

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

17  organization engaged in the business of selling fireworks.

18         (3)(1)  "Distributor of sparklers" means any person or

19  organization engaged in the business of selling sparklers to a

20  wholesaler.

21         (4)(2)  "Division" means the Division of the State Fire

22  Marshal of the Department of Financial Services.

23         (5)(3)  "Explosive compound" means any chemical

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

25  which is to function by the substantially instantaneous

26  release of gas and heat.

27         (6)(4)(a)  "Fireworks" means and includes any

28  combustible or explosive composition or substance or

29  combination of substances or, except as hereinafter provided,

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

31  audible effect by combustion, explosion, deflagration, or

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 1  detonation.  The term includes blank cartridges and toy

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

 3  which require fire underneath to propel them, firecrackers,

 4  torpedoes, skyrockets, roman candles, dago bombs, and any

 5  fireworks containing any explosives or flammable compound or

 6  any tablets or other device containing any explosive

 7  substance.

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

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

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

11  twenty-five hundredths grains or less of explosive compound

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

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

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

15  twenty hundredths grains of explosive mixture, the sale and

16  use of which shall be permitted at all times.

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

18  novelties and trick noisemakers:

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

20  not more than 10 grams of pyrotechnic composition that

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

22  pellet burns and that does not contain mercuric thiocyanate.

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

24  containing not more than 10 grams of pyrotechnic composition

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

26  primary effect.

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

28  a small report intended to surprise the user and which

29  includes:

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

31  device containing not more than 16 milligrams of explosive

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 1  composition that is friction sensitive, which is ignited by

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

 3  a paper streamer and produces a small report.

 4         b.  A booby trap, which is a small tube with a string

 5  protruding from both ends containing not more than 16

 6  milligrams of explosive compound, which is ignited by pulling

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

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

 9  containing not more than four milligrams of explosive

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

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

12  not contain more than 250 milligrams of total sand and

13  explosive composition.

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

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

16  or pyrotechnic composition and which, upon ignition, produces

17  a small report or shower of sparks.

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

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

20  composition and which produces, upon ignition of a cigarette

21  containing one of the pegs, a small report.

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

23  contains not more than 10 grams of pyrotechnic composition

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

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

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

27  small report.

28  

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

30  permitted at all times.

31  

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

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

 3  180 consecutive days.

 4         (8)  "Manufacturer of fireworks" means any person or

 5  organization engaged in the manufacture or construction of

 6  fireworks in this state.

 7         (9)(5)  "Manufacturer of sparklers" means any person or

 8  organization engaged in the manufacture or construction of

 9  sparklers in this state.

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

11  association, church or other religious entity, nonprofit

12  corporation, or similar entity.

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

14  firm, sole proprietorship, partnership, corporation, limited

15  liability corporation or partnership, professional

16  association, or other similar entity.

17         (12)(6)  "Retailer" means any person who, at a fixed

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

19  consumers at retail.

20         (13)(7)  "Seasonal retailer" means any person engaged

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

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

23  January 2 of each year.

24         (14)(8)  "Sparkler" means a device which emits showers

25  of sparks upon burning, does not contain any explosive

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

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

28  contains not more than 100 grams of the chemical compound

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

30  approved by the division is classified as fireworks.

31  

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

 2  organization engaged in the business of selling fireworks to

 3  another wholesaler, a distributor, or a manufacturer

 4  registered under this chapter or for agricultural or public

 5  display purposes.

 6         (16)(9)  "Wholesaler of sparklers" means any person or

 7  organization engaged in the business of selling sparklers to a

 8  retailer.

 9         Section 3.  Section 791.012, Florida Statutes, is

10  amended to read:

11         791.012  Minimum fireworks safety standards.--The

12  outdoor display of fireworks in this state shall be governed

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

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

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

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

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

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

19  stringent regulations for the outdoor display of fireworks.

20  The division shall adopt promulgate rules to carry out the

21  provisions of this section.  The Code for Fireworks Display

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

23  residential property and shall not govern the display of those

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

25  and (c) and authorized for sale thereunder.

26         Section 4.  Section 791.015, Florida Statutes, is

27  amended to read:

28         791.015  Registration of manufacturers, distributors,

29  and wholesalers of sparklers or fireworks, and retailers of

30  sparklers.--

31  

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 1         (1)  REGISTRATION REQUIREMENTS.--An organization or

 2  individual may not engage in the business of manufacturing,

 3  distributing, or selling at wholesale or retail any firework

 4  or sparkler except as provided in this section. Any

 5  manufacturer, distributor, or wholesaler of sparklers or

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

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

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

 9  register annually with the division on forms prescribed by the

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

11  or seasonal retailer must submit a separate registration form

12  and a separate registration fee for each location where

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

14  wholesaler who wishes to engage in the business of

15  manufacturing, distributing, or selling fireworks to the

16  extent allowed in this chapter must submit a separate

17  registration form and a separate registration fee for each

18  location where fireworks will be manufactured or sold.

19  Registration certificates issued by the division shall be

20  displayed on the premises and made available for immediate

21  inspection by the authority having jurisdiction or the

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

23  certificate of registration. Any retailer who sells sparklers

24  at more than one retail location may submit one registration

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

26  each location with the registration form; however, any

27  retailer may submit multiple registration forms.

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

29  with the division must be notarized and must include the

30  following information: name of the individual, if the

31  certificate is to be held in an individual capacity; business

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 1  name; address; telephone number; officers, if the business is

 2  a corporation; and an individual designated as a contact

 3  person. The form for application for registration by the

 4  division must be accompanied by evidence of registration with

 5  the Department of Revenue under chapter 212.

 6         (3)  FEES.--

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

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

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

10  wholesale location registered. Each seasonal retailer must pay

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

12  exceed $200 for each seasonal retailer location registered.

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

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

15  registered.  Each certificateholder wishing to have a

16  duplicate certificate issued for one which is lost or to

17  reflect a change of mailing address shall request such

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

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

20  location. A change in business location requires a new

21  application for registration and fee.

22         (b)  Revenue from registration fee payments shall be

23  deposited in the Insurance Regulatory Trust Fund for the

24  purposes of implementing the registration and testing

25  provisions of this chapter.

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

27  prescribing registration forms required by this section.

28         Section 5.  Section 791.016, Florida Statutes, is

29  created to read:

30         791.016  Procedures for cease and desist orders;

31  administrative fine.--

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

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

 3  adopted under this chapter, the division shall determine the

 4  matter by issuing a notice of intent to issue a cease and

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

 6  other requirements of chapter 120.

 7         (2)  If the division determines that the acts

 8  complained of are in violation of any provision of this

 9  chapter or any rule adopted under this chapter, the division

10  shall issue a final order requiring the person to cease and

11  desist from the violation or imposing an administrative fine,

12  or both.

13         (3)  This section shall be enforced as provided in

14  chapter 120.

15         Section 6.  Section 791.017, Florida Statutes, is

16  created to read:

17         791.017  Administrative fines.--

18         (1)  If a person violates any provision of this chapter

19  or any rule adopted under this chapter, or violates a cease

20  and desist order, the division may impose an administrative

21  fine, not to exceed $1,000 for each violation, or suspend or

22  revoke the certificate of registration issued.

23         (2)  The division may allow the certificateholder a

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

25  its entirety to the division. If the certificateholder fails

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

27  the division shall revoke the certificates held.

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

29  day the cease and desist order is violated constitutes a

30  separate violation for purposes of assessing an administrative

31  fine.

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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 as provided in

26  chapter 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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 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 reinstatement; but the division may

10  not grant such reinstatement if it finds that the circumstance

11  or circumstances for which the registration certificate was

12  suspended or revoked still exist or are likely to recur.

13         (2)  A person or organization holding a registration

14  certificate revoked by the division may not apply for another

15  registration certificate under this chapter within 2 years

16  after the effective date of revocation or, if judicial review

17  of revocation is sought, within 2 years after the date of the

18  final court order or decree affirming the revocation order.

19         (3)  The division may not issue a registration

20  certificate to any person or organization whose registration

21  certificate has been revoked on two separate occasions.

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

23  revocation of the registration certificate, the former

24  certificateholder may not engage in or attempt or profess to

25  engage in any transaction or business for which a registration

26  certificate is required by this chapter.

27         Section 9.  Section 791.02, Florida Statutes, is

28  amended to read:

29         791.02  Sale of fireworks regulated; rules and

30  regulations.--

31  

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

 2  any person or organization, firm, copartnership, or

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

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

 5  board of county commissioners shall have power to adopt

 6  reasonable rules and regulations for the granting of permits

 7  for supervised public display of fireworks by fair

 8  associations, amusement parks, and other organizations or

 9  groups of individuals when such public display is to take

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

11  governing body of any municipality shall have power to adopt

12  reasonable rules and regulations for the granting of permits

13  for supervised public display of fireworks within the

14  boundaries of any municipality. Every such display shall be

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

16  of the police and fire departments of the municipality in

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

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

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

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

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

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

23  local authority licensing jurisdiction does not have a permit

24  process for the public display of fireworks, applications

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

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

27  distribution of fireworks for such display shall be lawful for

28  that purpose only.  No permit granted hereunder shall be

29  transferable. Any public display of fireworks must be

30  conducted in compliance with s. 791.012.

31  

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

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

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

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

 5  retailer or seasonal retailer unless the product was obtained

 6  from a manufacturer, distributor, or wholesaler registered

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

 8  seasonal retailer shall keep, at every location where

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

10  purchase from the manufacturer, distributor, or wholesaler,

11  which states the registration certificate number for the

12  particular manufacturer, distributor, or wholesaler and the

13  specific items covered by the invoice.  Each seasonal retailer

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

15  certificate at each retail or seasonal retail location. Retail

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

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

18  fire regulations are allowed.

19         Section 10.  Section 791.021, Florida Statutes, is

20  created to read:

21         791.021  Sale of sparklers.--

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

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

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

25  this chapter.

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

27  organization, manufacturer, distributor, or wholesaler to

28  determine that the purchaser is registered with the division.

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

30  seasonal retailer of sparklers to determine that a purchaser

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

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

 2  identification card issued by the Department of Highway Safety

 3  and Motor Vehicles.

 4         Section 11.  Section 791.04, Florida Statutes, is

 5  amended to read:

 6         791.04  Sale at wholesale, etc., exempted.--

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

 8  prohibit any manufacturer, distributor, or wholesaler of

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

10  791.015 may to sell at wholesale any such fireworks as are not

11  herein prohibited to any manufacturer, distributor, or

12  wholesaler of fireworks who has registered with the division

13  and holds a current certificate of registration.

14         (2)  Fireworks shall be shipped or transported directly

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

16  manufacturer, distributor, or wholesaler of fireworks.

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

18  a public display permit issued by the authority having

19  jurisdiction for the purpose of conducting a public display of

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

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

22  manufacturer, distributor, or wholesaler of fireworks.

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

24  identifying the manufacturer, distributor, or wholesaler of

25  fireworks with the current certificate of registration number

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

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

28  fireworks at wholesale between manufacturers, distributors,

29  and wholesalers who have registered with the division pursuant

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

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

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

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

 3  any board of county commissioners at the display covered by

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

 5  or other transportation agencies for signal purposes or

 6  illumination or when used in quarrying or for blasting or

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

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

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

10  organizations composed of the Armed Forces of the United

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

12  as barring the operations of manufacturers, duly licensed,

13  from manufacturing, experimenting, exploding, and storing such

14  fireworks in their compounds or proving grounds.

15         Section 12.  Section 791.041, Florida Statutes, is

16  created to read:

17         791.041  Maintenance of records and sales of fireworks

18  by manufacturers, distributors, and wholesalers;

19  inspections.--

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

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

22  fireworks except in conformance with this chapter.

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

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

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

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

27  permit issued by the authority having jurisdiction, the date

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

29  invoices and sales tickets shall be maintained by the

30  manufacturer, distributor, or wholesaler of fireworks and a

31  copy provided to the purchaser.

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

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

 3  state with statutory authority under s. 791.001.

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

 5  make any false or fictitious entry or misrepresentation upon

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

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

 8  distributor, or wholesaler of fireworks to determine that a

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

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

11  identification card issued by the Department of Highway Safety

12  and Motor Vehicles.

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

14  distributor, or wholesaler of fireworks to determine, when

15  selling fireworks under s. 791.04, that the purchaser is

16  registered under s. 791.015, evidenced by the purchaser

17  presenting a valid certificate of registration issued by the

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

19  the purchase must be evidenced by the purchaser presenting a

20  public display permit issued by the authority having

21  jurisdiction. Agricultural purchases shall be in compliance

22  with s. 791.07.

23         Section 13.  Section 791.05, Florida Statutes, is

24  amended to read:

25         791.05  Contraband; seizure, forfeiture, and disposal

26  of illegal fireworks.--

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

28  delivered, possessed, manufactured, or distributed contrary to

29  any provision of this chapter and all such fireworks or

30  sparklers the lawful possession of which is not established or

31  title to which cannot be ascertained are declared contraband

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

 2  law enforcement agency whose duty it is to enforce this

 3  chapter.

 4         (2)  The state attorney within whose jurisdiction the

 5  unlawful fireworks or sparklers have been seized or any such

 6  attorney as is employed by the seizing law enforcement agency

 7  shall promptly proceed against the contraband fireworks and

 8  show cause in the circuit court within the jurisdiction in

 9  which the seizure or offense occurred and may have such

10  contraband article or articles forfeited to the law

11  enforcement agency making the seizure upon showing proof that

12  the contraband fireworks were being used or exist in violation

13  of this chapter.

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

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

16  Any such sample and analysis thereof may be admitted into

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

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

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

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

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

22  and evidence, upon a final determination that the seized

23  fireworks were being used or exist in violation of this

24  chapter, the circuit court having jurisdiction shall order

25  such fireworks forfeited and destroyed. The method of

26  destruction or disposal of such fireworks shall be at the

27  discretion of the seizing agency.

28         (4)  The final order of forfeiture by the court shall

29  perfect in the seizing law enforcement agency all rights,

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

31  back to the date of seizure.

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

 2  provision that the owner or holder of the contraband fireworks

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

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

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

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

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

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

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

10  chapter.

11         Section 14.  Section 791.055, Florida Statutes, is

12  amended to read:

13         791.055  Restrictions upon storage of sparklers or

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

15  state is governed by the National Fire Protection Association

16  1124 Code as adopted by rule of the Department of Financial

17  Services.

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

19  any store:

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

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

22  or varnishes are in unbroken containers.

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

24  substances or substances which may generate vapors are used,

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

26  gasoline, or substances are in unbroken containers.

27         (c)  In which there is not at least one approved

28  chemical fire extinguisher ready, available, and equipped for

29  use in extinguishing fires.

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

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

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

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

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

 4  cigarette, or pipe.

 5         Section 15.  Section 791.06, Florida Statutes, is

 6  amended to read:

 7         791.06  Penalties.--

 8         (1)  Any person or organization that violates any

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

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

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

12         (2)  Any person or organization that violates any

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

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

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

16  775.083, or s. 775.084. Any firm, copartnership, or

17  corporation violating the provisions of this chapter shall be

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

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

20  members of a partnership and the responsible officers and

21  agents of an association or corporation, punishable as

22  provided in s. 775.082 or s. 775.083.

23         Section 16.  Section 791.061, Florida Statutes, is

24  created to read:

25         791.061  Injunction.--In addition to the penalties and

26  other enforcement provisions of this chapter, if any person

27  engaged in any activity prohibited by this chapter violates

28  any provision of this chapter or any rule adopted under this

29  chapter, the division may resort to proceedings for injunctive

30  relief in the circuit court of the county in which such person

31  resides or has a principal place of business and therein apply

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 1  for such temporary or permanent orders as the division deems

 2  necessary to restrain the person from engaging in any such

 3  activities, until such person has complied with the provisions

 4  of this chapter and such rules.

 5         Section 17.  Section 791.07, Florida Statutes, is

 6  amended to read:

 7         791.07  Agricultural and fish hatchery use.--

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

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

10  to be used solely and exclusively in frightening birds from

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

12  governed entirely by the rules prescribed by the Department of

13  Agriculture and Consumer Services.

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

15  who operates a fish hatchery may use fireworks solely and

16  exclusively for the purpose of frightening birds from doing

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

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

19  sheriff of the county or the authority having jurisdiction in

20  the county in which the person is engaged in agricultural

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

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

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

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

25  use fireworks to frighten birds from harming the agricultural

26  works or fish hatchery operation and that fireworks will be

27  used solely and exclusively for that purpose. The sheriff of

28  the county or the authority having jurisdiction, upon

29  determining that the sworn affidavit is sufficient and the

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

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

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 1  applicant and the quantity of fireworks to be purchased and

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

 3  manufacturer, distributor, or wholesaler making the sale as

 4  part of its recordkeeping requirement under s. 791.041, and a

 5  copy shall be maintained by the applicant with the fireworks

 6  covered under the permit.

 7         (3)  Falsification of any affidavit or permit provided

 8  for in this section or providing false information in such

 9  sworn affidavit is a misdemeanor of the first degree,

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

11  Falsification of any affidavit or permit provided for in this

12  section includes aiding and abetting such falsification or

13  selling fireworks when the seller knows or has reason to

14  believe that the permit is falsified.

15         Section 18.  Section 791.08, Florida Statutes, is

16  created to read:

17         791.08  Nonpreemption.--The state does not preempt the

18  regulation of fireworks and sparklers as provided in this

19  chapter. Any authority having jurisdiction may enact any

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

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

22  degree of safety, than provided in this chapter.

23         Section 19.  This act shall take effect July 1, 2005.

24  

25            *****************************************

26                          SENATE SUMMARY

27    Provides a comprehensive review of statutes relating to
      registration and regulation of manufacturers and sellers
28    of fireworks and licensing and permitting requirements.
      (See bill for details.)
29  

30  

31  

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