§ 15.12.120. Fire protection—Regulating the storage and sale of fireworks.

A.

Definitions. As used in this section:

"Aerial device" means a fireworks device that upon ignition propels itself or an insert a significant distance into the air, but does not include a firework that produces a shower of sparks. Aerial device includes sky rocket and bottle rocket, missile-type rocket, stick-type rocket, helicopter, aerial spinner, roman candle and mine shell.

"City commission" is the Clovis, New Mexico city commission.

"Common fireworks" means any fireworks device suitable for use by the public that complies with the construction, performance, composition and labeling requirements promulgated by the United States consumer product safety commission in Title 15, C.F.R. and that is classified as a class C explosive by the United States Department of Transportation.

"Display distributor" means any person, firm or corporation selling special fireworks.

"Distributor" means any person, firm or corporation selling fireworks to wholesalers and retailers for resale.

"Fire chief" is the chief of the city of Clovis fire department.

"Fireworks" means any composition or device for the purpose of producing a visible or audible effect by combustion, deflagration or detonation. Fireworks are further classified in the city fireworks ordinance as common fireworks and special fireworks, as defined by the United States Department of Transportation, C.F.R. Title 49, transportation, parts 173.88(d) and 173.100(r).

"Ground audible device" means a fireworks device intended to function on the ground that produces an audible effect.

"Manufacturer" means any person, firm or corporation engaged in the manufacture of fireworks.

"Permissible fireworks" means fireworks legal for sale and use in the city under the provisions of the city fireworks ordinance.

"Retailer" means any person, firm or corporation purchasing fireworks for resale to consumers.

"Special fireworks" means fireworks devices primarily intended for commercial displays which are designed to produce visible or audible effects by combustion, deflagration or detonation including saluted containing more than one hundred thirty milligrams (two grain) of explosive composition, aerial shells containing more than forty grams of chemical composition exclusive of lift charge and other exhibition display items that exceed the limits contained in the city fireworks ordinance for common fireworks.

"Specialty retailer" means any person, firm or corporation purchasing fireworks for year-round resale in permanent retail stores whose primary business is tourism.

"Wholesaler" means any person, firm or corporation purchasing fireworks for resale to retailers.

B.

License or Permit Required.

1.

No person may sell, hold for sale, import, distribute, or offer for sale, as specialty retailer, or retailer any fireworks in the city unless such person has first obtained the appropriate license or permit.

2.

The fire chief shall enforce the city fireworks ordinance. All license applications shall be submitted to the office of the city clerk. All retailers shall be required to purchase a retail fireworks permit for each retail location.

3.

An applicant for a license or permit under the city fireworks ordinance shall pay to the city the following fees, which shall not be refundable:

a. Specialty retailer license	$25.00
b. Retailer permit	25.00

 

4.

All licenses and permits shall be issued for one year beginning on May 1st of each year. All licenses and permits shall be issued within thirty days from the date of receipt of application.

5.

Licenses issued under the city fireworks ordinance shall not be restricted in number or limited to any person without cause.

C.

Possession, Sale or Use of Unauthorized Fireworks Unlawful. No individual, firm, partnership, corporation or association shall possess for retail sale in the city of Clovis, sell or offer for sale at retail or use or possess any fireworks other than permissible fireworks.

D.

Exportation of Fireworks from the City. Nothing in the city fireworks ordinance shall prohibit wholesalers, distributors, importers, specialty retailers or manufacturers from storing, selling, shipping or otherwise transporting fireworks as defined by the United States Department of Transportation to any person or entity outside the city.

E.

Permissible Fireworks. Permissible fireworks for sale to the general public as that term is used in the city fireworks ordinance shall be understood to mean common fireworks legal for sale and use in New Mexico under the provisions of the Fireworks Safety and Licensing Act in N.M.S.A., 1978 Comp., as amended, with the exception of ground audible devices, and aerial devices, which are prohibited.

F.

Retail Sales or Storage of Fireworks—Regulated Activities.

1.

No fireworks may be sold at retail without a retail permit. The permit shall be at the location where the retail sale takes place.

2.

It is unlawful to offer for sale or to sell any fireworks to children under the age of sixteen years or to any intoxicated person.

3.

At all places where fireworks are stored, sold or displayed, the words "NO SMOKING" shall be posted in letters at least four inches in height. Smoking is prohibited within twenty-five feet of any fireworks stock.

4.

No fireworks shall be stored, kept, sold or discharged within fifty feet of any gasoline pump or gasoline bulk station or any building in which gasoline or volatile liquids are sold in quantities in excess of one gallon, except in stores where cleaners, paints and oils are handled in sealed containers only.

5.

All fireworks permittees and licensees shall keep and maintain upon the premises a fire extinguisher bearing an Underwriters Laboratories Inc. rated capacity of at least five pounds ABC per five hundred square feet of space used for fireworks sales or storage.

6.

A sales clerk who is at least sixteen years of age shall be on duty to serve consumers at the time of purchase or delivery. All fireworks sold and shipped to consumers within the city shall be sold and shipped only by an individual firm, partnership or corporation holding the proper state of New Mexico fireworks license or permit.

7.

No fireworks shall be discharged within one hundred fifty feet of any fireworks retail sales location.

8.

No person shall ignite any fireworks within a motor vehicle or throw fireworks from a motor vehicle, nor shall any person place or throw any ignited article of fireworks into or at a motor vehicle or at or near any person or group of people.

9.

Any fireworks devices that are readily accessible to handling by consumers or purchasers in a retail sales location shall have their exposed fuses protected in a manner to protect against accidental ignition of an item by a spark, cigarette ash or other ignition source. If the fuse is a thread-wrapped safety fuse which has been coated with a nonflammable coating, only the outside end of the safety fuse shall be covered. If the fuse is not a safety fuse, then the entire fuse shall be covered.

10.

Fireworks may be sold at retail between June 20th and July 6th of each year and three days preceding and including New Year's Day, Chinese New Year and Cinco de Mayo of each year except that fireworks may be sold all year in permanent retail stores whose primary business is tourism.

G.

Public Display of Fireworks.

1.

Nothing in the city fireworks ordinance shall prohibit the public display of fireworks except that any individual, association, partnership, corporation or organization shall secure a written permit from the office of the city clerk and the fireworks shall be purchased from a distributor or display distributor licensed by the state Fire Marshal and the Bureau of Alcohol, Tobacco, and Firearms at the United States Department of Treasury.

2.

The fire chief may adopt reasonable rules and regulations for the use of special fireworks in public displays.

H.

Penalty-Criminal.

1.

Any individual, firm, partnership or corporation that violates any provision of the city fireworks ordinance is guilty of a misdemeanor and upon conviction shall be punished by a fine of not more than three hundred dollars or imprisonment for not more than ninety days, or both.

2.

Nothing in the city fireworks ordinance shall apply to or prohibit any employees of the Department of Game and Fish or the United States Fish and Wildlife Service from processing fireworks for control of game birds and animals or to prohibit any law enforcement officer from possessing fireworks in the performance of his duties or to prohibit any organization therein from sponsoring and conducting in connection with any public celebration, an officially supervised and controlled fireworks display.

I.

Penalty-Civil.

1.

If a person is found guilty of violating any of the provisions of the city fireworks ordinance, that person's license or permit may be revoked or suspended by the fire chief, his deputies or designee.

2.

No individual, firm, corporation or partnership shall possess any fireworks for sale within the city, other than those authorized in the city fireworks ordinance. The fire chief, his deputies or designee may at reasonable hours enter and inspect the permittee's premises, building, mobile or motor vehicle, or temporary or permanent structure to determine compliance with the city fireworks ordinance. If any retailer has in his possession any fireworks in violation of that act, his permit shall be revoked and all such fireworks seized, and the fireworks shall be kept to be used as evidence. If any person has in his possession any fireworks in violation of that act, a warrant may be issued for the seizure of fireworks and the fireworks shall be safely kept to be used as evidence. Upon conviction of the offender, the fireworks shall be destroyed, but if the offender is discharged, the permissible fireworks shall be returned to the person in whose possession they were found; provided, however, that nothing in the city fireworks ordinance applies to the transportation of fireworks by regulated carriers.

3.

Any person found guilty of violating any of the provisions of the city fireworks ordinance shall be subject to fine and imprisonment as provided in Chapter 1.24 of this code.

J.

Severability. If any section, subsection, clause, word or phrase of this section is for any reason held to be unconstitutional or otherwise invalid by any court of competent jurisdiction, such decision shall not affect the validity of the remaining portion of this section. The city commission declares that it would have passed this section and each section, sentence, clause, word and phrase thereof, irrespective of any one or more sections, subsections, sentence, clause, word and phrase thereof, irrespective of any one or more sections, subsections, sentence, clause, word or phrases being declared unconstitutional or otherwise invalid.

(Ord. 1803-2004 § 2(C), 2004; Ord. 1699-2002 § 4, 2002; Ord. 1409-92 § 4(B), 1992).