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A04362 Summary:

BILL NO    A04362C


SPONSOR    Morelle (MS)

COSPNSR    Lupardo, Zebrowski


Amd SS270.00 & 405.00, Pen L

Relates to offenses relating to possession or sale of fireworks, sparkling
devices and ammunition.
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A04362 Actions:

BILL NO    A04362C

02/03/2011 referred to codes
05/10/2011 amend and recommit to codes
05/10/2011 print number 4362a
06/06/2011 amend and recommit to codes
06/06/2011 print number 4362b
06/17/2011 amend (t) and recommit to codes
06/17/2011 print number 4362c
06/20/2011 reported referred to rules
06/20/2011 reported 
06/20/2011 rules report cal.547
06/20/2011 ordered to third reading rules cal.547
06/21/2011 passed assembly
06/21/2011 delivered to senate
06/22/2011 SUBSTITUTED FOR S4529D
06/22/2011 3RD READING CAL.1516
06/22/2011 PASSED SENATE
09/12/2011 delivered to governor
09/23/2011 vetoed memo.59
09/23/2011 tabled
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A04362 Memo:


TITLE OF BILL:  An act to amend the penal law, in relation to offenses
relating to possession or sale of fireworks, sparkling devices and

PURPOSE: This bill is intended to modernize the statute dealing with
illegal fireworks, provide additional definitions of what constitutes
fireworks and dangerous fireworks and take certain novelty devices,
which are not recognized as fireworks by the federal government out of
the definition of fireworks.

SUMMARY OF PROVISIONS: Section one of this bill amends subdivisions 1,
2 and 3 of section 270.00 of the penal law to remove from its
definition of "Fireworks" and "Dangerous Fireworks" sparkling devices,
novelties, toy caps, and similar devices as defined by APA Standard
87-1, 2001 edition.

Additionally this section provides definitions for "display
fireworks", "articles pyrotechnic" and "special effects", all of which
are included under the definition of "Fireworks." It also removes
flares, sparkling devices and other novelties from the terms
"fireworks" and "dangerous fireworks." The definitions of "fireworks"
and "dangerous fireworks" remain unchanged and include sparkling
devices in cities with a population of one million or more.

Subdivision 2 creates the crime of unlawful sale of dangerous
fireworks to a minor is amended to include the sale of fireworks,
sparkling devices and novelties.

EXISTING LAW:; Section 270:00 of the penal law was derived from
section 1844a of the Penal Law of 1909 which was enacted into law in
1940. In 1997 certain fireworks were reclassified as "dangerous
fireworks". These fireworks are capable of causing serious physical
injury and include torpedoes, skyrockets, Roman candles and bombs.
Current law penalizes as a violation the possession or use of
fireworks or dangerous fireworks, and penalizes as a class B
misdemeanor the sale of fireworks or dangerous fireworks. Any person
who sells fireworks or dangerous fireworks valued at $500 or more, or
who sells dangerous fireworks to a minor, is guilty of a class R
misdemeanor, Finally, any person who, within the past five years has
previously been convicted of the sale of dangerous fireworks, is
guilty of a class E felony.

JUSTIFICATION: The current law has not been used effectively in part
because of poor definitions. Courts have thrown out indictments
because of poor definitions of the term fireworks. This bill
strengthens those definitions. In addition very few arrests and
convictions have been obtained under the current statute. Since 1956,
63 convictions have been obtained Statewide. In 1999 and 2000 only
five convictions were obtained.

By modernizing the statute and clearly defining fireworks, dangerous
fireworks and novelty devices, the bill will provide law enforcement
with an important tool in reducing the use of illegal fireworks and
homemade devices and encouraging the use of safe and legally regulated

novelty devices. The amendments provide for technical changes to the
definitions of "explosive composition" and "pyrotechnic composition,"

They also update the current definition of sparkler's as either wood
stick or wire, and define handheld or ground based sparkling devices
(also known as cone or cylindrical fountain sparklers) as a separate
category of fireworks.

The Consumer Products Safety Commission, hereinafter, CPSC, has
outlawed sparkler's containing magnesium, so that definition is
deleted and a definition of these devices based upon the weight of the
pyrotechnic composition as used by both the CPSC and the United States
Department of Transportation is substituted. Explosive or aerial
sparkling devices are added to the list of dangerous fireworks and the
provision making sparklers more than ten inches in length or
one-fourth of an inch in diameter is deleted, as these sparklers would
now be judged by weight of pyrotechnic composition, not length or

Sparklers would still be defined as fireworks and still be banned with
out an appropriate permit, assuming the weight requirement was met. To
meet the concerns of the City of New York, the definition of novelty
devices is subdivided into four separate categories and all novelty
devices would still be deemed fireworks and prohibited by this
legislation in cities with a population in excess of one million.

In other areas of the state, possession and sale of these items would
be permitted. A second category would include handheld and ground
based sparkling devices which are non-explosive and non-aerial and
which contain small amounts of pyrotechnic composition. This amended
bill would permit these items to be possessed and sold in New York

However, as to cities with a population of one million or more, these
items would continue to be deemed "fireworks" and prohibited in such
city by the provisions of this amendment.

A third category would include toy pistols and toy caps which
currently are not considered fireworks under the Penal Law. The last
category of novelty devices includes trick noisemaker's, including
party poppers, snappers and drop pops containing very small amounts of
explosive composition. It is believed these items, very similar to toy
cap guns, are not covered by the current statute and their legal
status statewide needs to be clarified.

The amendment prohibits the sale of sparkling devices to minor's under
the age of eighteen. Pursuant to the amendments, repeat sales to a
minor of these items subjects the offender to felony prosecution.

LEGISLATIVE HISTORY: A9006B of 2009-2010 - amend (t) and recommit to

FISCAL IMPLICATIONS: To be determined. There will be considerable
revenue from state sales tax.

LOCAL FISCAL IMPLICATIONS: Possible additional sales tax revenues.
There will become law enforcement efficiency due to more clear
definition of terms.

EFFECTIVE DATE: This act shall take effect immediately.
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