§ 30-28. Sale of sparklers; fireworks; permit required.

(a)

Definitions : For purposes of this section, the following definitions will apply:

Fireworks means and includes any combustible or explosive composition or substance or combination of substances, or, except as hereinafter provided, any article prepared for the purpose of producing a visible or audible effect by combustion, explosion, deflagration, or detonation. The term includes but is not limited to firecrackers, torpedoes, skyrockets, roman candles, dago bombs, and any tablets or other devices containing any explosive substance. "Fireworks" does not include any item listed in F.S. § 791.01(4)(b) or (c).

Manufacturer means any person, firm, partnership, or corporation engaged in the manufacture or construction of sparklers or fireworks in the City of Port Orange.

Public display means any outdoor use or display of fireworks, including but not limited to, the igniting and discharge of fireworks within the corporate boundaries of the City of Port Orange, except as permitted pursuant to F.S. § 791.07.

Retailer means any person, firm, partnership, or corporation who at a fixed place of business, is engaged in the business of selling sparklers to consumers at retail.

Seasonal retailer means any person, firm, partnership, or corporation engaged in the business of selling sparklers at retail from June 20 through July 5 and from December 10 through January 2 of each year from a temporary location (including, but not limited to, tents, storefronts and open air sales).

Sparkler means a device which emits showers of sparks upon burning, does not contain any explosive compounds, does not detonate or explode, is hand-held or ground-based, cannot propel itself through the air, and contains not more than 100 grams of the chemical compound which produces sparks upon burning. Any sparkler that is not approved by the state fire marshal is classified as fireworks.

(b)

Sparkler permit requirements. All manufacturers, distributors, wholesalers, retailers and seasonal retailers of sparklers must apply for an annual permit from the fire department, and must receive a permit from the city prior to selling sparklers in the city. A retailer who sells sparklers at more than one retail location may submit one permit application for all locations within the city by providing the address of each location on the same permit application form, or the retailer may submit multiple application forms for each location. Nothing herein shall be construed to exempt manufacturers, distributors, wholesalers, retailers or seasonal retailers, from compliance with all other applicable zoning, licensing, building and fire protection requirements of the City Code of Ordinances and the land development code. It is unlawful to sell sparklers in the city without a permit.

(c)

Permit application. The permit application must include the following information: Business name; address; telephone number; business owner; address; telephone number; and an individual designated as a contact person. Along with the permit application, a product list of items to be sold shall also be submitted. A site and building plan may also be required.

(d)

Fees. Each retailer must pay to the city an annual permit fee of $100.00. If the retailer has applied to do business at more than one location, the fee shall be $100.00 for the first location and $25.00 for each additional location. Each seasonal retailer shall pay an annual permit fee of $300.00. If the seasonal retailer has applied to do business at more than one location, the fee shall be $300.00 for the first location and $75.00 for each additional location.

(e)

Copy maintained at business. Each retailer and seasonal retailer shall keep a copy of the permit at every location where sparklers are sold.

(f)

Prohibition against fireworks; permits.

(1)

Except as provided in F.S. § 791.02, 791.04, or 791.07, it shall be unlawful for any person, firm, partnership, corporation or other entity to offer for sale, expose for sale, sell at retail, use or explode any entity to offer for sale, expose for sale, sell at retail, use or explode any fireworks within the city, without a permit from the fire department.

(2)

Any person, firm, partnership, or corporation or other entity engaging in the sale, at retail or wholesale, or in the distributing or manufacturing of fireworks must first apply for and secure a permit from the fire department. The application for such permit shall include proof that the applicant is registered with the division of the state fire marshal pursuant to F.S. § 791.015, and such information as listed in subsection (c) above. The permit fees shall be the same as sparkler permit fees and shall be in accordance with subsection (d).

(3)

The purchaser of any fireworks from a retailer, wholesale, distributor, manufacturer or other entity must furnish to the seller, at the time of sale, proof of identification and, if applicable, proof that the buyer is registered with the division of the state fire marshal and otherwise in compliance with F.S. Ch. 791.

(4)

The seller must maintain a permanent, on-site record of sales, including the name and address of each purchaser, a copy of the proof of purchaser's identification, and proof of registration and compliance with F.S. Ch. 791. If the seller determines that registration under chapter 791 is not required, then the basis for such exception or exemption shall be recorded.

(5)

Any person, firm, partnership, corporation or other entity who is not registered with the division of the state fire marshal and who, pursuant to F.S. § 791.04, purchases fireworks to be shipped directly out of the state, shall not be allowed to take possession of such fireworks. The seller shall retain the possession of such fireworks and shall be responsible for shipping same to the purchaser at a point of delivery out of the state. If an out of state address is not given to seller for shipment or a record of the out of state address is not maintained by the seller the sale and purchase shall be presumed to be unlawful under F.S. § 791.04, as a not for out of state use or sale and is prohibited hereunder.

(6)

It is unlawful for any person, firm, partnership, corporation or other entity to sell fireworks for out of state use and to deliver possession of said fireworks to the purchaser by any means other than by shipping the fireworks to the delivery address out of the state.

(7)

Any person, firm, partnership, corporation or other entity who is not registered with the division of state fire marshal and who, pursuant to F.S. § 791.07, purchases fireworks for frightening birds must provide to the seller a copy of the statement that has been filed with, and stamped as received by the Volusia County Sheriff's Office or the Port Orange Police Department. The seller shall maintain the stamped copy of the statement in addition to the information required in subsection (f)(4) above.

(8)

All appropriate local and state permits, registrations and licenses must be displayed at each retail, wholesale, distributing, or manufacturing site.

(g)

Public display of fireworks.

(1)

Any person, firm, partnership, corporation or other entity intending to present a public display of fireworks within the city, as contemplated within F.S. § 791.02, shall apply for and secure a permit for same from the fire department.

(2)

The application shall be on a form prescribed by the fire department and shall be accompanied by the following:

a.

Proof of insurance at a type and level approved by the city's risk manager.

b.

A list of quantities and types of fireworks to be utilized at the display.

3.

A site plan indicating setbacks in accordance with NFPA 1123.

4.

Qualifications of the person having direct control over the display to handle fireworks and fireworks display.

5.

Information necessary to determine compliance with NFPA 1123.

6.

A permit fee of $100.00.

(h)

Violation; seizure. Any police officer or duly authorized law enforcement officer is authorized to seize, take, remove, or cause to be removed, at the expense of the owner, all stocks of fireworks, combustibles or sparklers offered or exposed for sale, stored, or held in violation this chapter.

(i)

Penalties.

(1)

Any person, firm, partnership, corporation or other entity who violates any provision of this section shall be guilty of a misdemeanor of the first degree, punishable by a term of imprisonment not to exceed one year and a fine of $500.00. Each day any violation of any provision of this section shall continue to constitute a separate offense.

(2)

Nothing herein contained shall prevent the city from taking such lawful action, including, but not limited to, resorting to equitable and injunctive action, as is necessary to prevent or remedy any violation of this section, and the city may specifically bring suit in the Circuit Court of Volusia County, Florida to restrain, enjoin or otherwise prevent any violation of this section. Persons violating the provisions of this section shall be responsible to the city for all costs incurred in enforcing this section, including attorney's fees.

(Ord. No. 2004-14, § 1, 7-20-04)