[HISTORY: Adopted by the Mayor and Council of the City of Española 5-29-1990 by Ord. No. 463 (Ch. 70, Art. IV, Div. 3, of the Code of Ordinances). Amendments noted where applicable.]
The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
- COMMON FIREWORKS
- 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 CFR Title 16 and that is classified as a Class C explosive by the United States Department of Transportation.
- Any person selling fireworks to wholesalers and retailers for resale.
- Any composition or device for the purpose of producing a visible or audible effect by combustion, deflagration or detonation. Fireworks are further classified in this chapter as "common fireworks" and "special fireworks," as defined by the United States Department of Transportation, 49 CFR 173.88(d) and 173.100(r).
- GOVERNING BODY
- The Mayor and City Council.
- GROUND AUDIBLE DEVICE
- A fireworks device intended to function on the ground that primarily produces an audible effect.
- HELICOPTER; AERIAL SPINNER
- A tube not exceeding 1/2 inch in inside diameter that may contain up to 20 grams of pyrotechnic composition. Some type of propeller or blade device is attached, and upon ignition the rapidly spinning device lifts into the air.
- Any person importing or causing fireworks to be imported into the City from another county, state, or a foreign country for subsequent sale.
- Any person engaged in the manufacture of fireworks.
- MISSILE-TYPE ROCKET
- A tube not exceeding 1/2 inch in inside diameter that may contain up to 20 grams of pyrotechnic composition, contains fins for guidance and stability and rises into the air upon ignition.
- PERMISSIBLE FIREWORKS
- Fireworks legal for sale and use in the City under the provisions of this chapter.
- Any person purchasing fireworks for resale to consumers.
- ROMAN CANDLE
- A heavy paper or cardboard tube not exceeding 3/8 inch in inside diameter, not exceeding 10 balls spaced uniformly in the tube, with a total pyrotechnic composition not to exceed 20 grams each in weight.
- SPECIAL FIREWORKS
- Fireworks devices primarily intended for commercial displays which are designed to produce visible or audible effects by combustion, deflagration or detonation, including salutes containing more than 130 milligrams (two grains) of explosive composition, aerial shells containing more than 40 grams of chemical composition exclusive of lift charge and other exhibition display items that exceed the limits contained in this chapter for common fireworks.
- SPECIALTY RETAILER
- Any person purchasing fireworks for year-round resale in permanent retail stores whose primary business is tourism.
- STICK-TYPE ROCKET
- A tube not exceeding 1/2 inch in inside diameter that may contain up to 20 grams of pyrotechnic composition. Sky rockets contain a wooden stick for guidance and stability and rise into the air upon ignition.
- Any person purchasing fireworks for resale to retailers.
Nothing in this chapter shall apply to or prohibit any employees of the Department of Game and Fish or the United States Fish and Wildlife Service from possessing fireworks in the performance of their duties or to prohibit any organization therein from sponsoring and conducting, in connection with any public celebration, an officially supervised and controlled fireworks display.
If a person is found guilty of violating any of the provisions of this chapter, that person's license or permit may be revoked or suspended by the Police Chief, his deputies or designees.
No individual, firm, corporation or partnership shall possess any fireworks for sale within the City, other than those authorized in this chapter. The Police Chief, his deputies or designees 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 this chapter. If any person has in his possession any fireworks in violation of this chapter, 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 this chapter, 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 this chapter applies to the transportation of fireworks by regulated carriers.
Required. No person may sell, hold for sale, import, distribute or offer for sale, as manufacturer, distributor, wholesaler, importer or retailer, any fireworks in the City unless such person has first obtained the appropriate license or permit.
Enforcement and administration. The Police Department shall enforce this chapter. All license applications shall be submitted to the office of the Police Chief. All retailers shall be required to purchase a retail fireworks permit for each retail location.
Fees. An applicant for a license or permit under this chapter shall pay to the Police Chief's office the following fees, which shall not be refundable:
Duration. All licenses and permits shall be issued for 60 days beginning on June 1 of each year. All licenses and permits shall be issued within five days from the date of receipt of application.
Number. Licenses issued under this chapter shall not be restricted in number or limited to any person without cause.
No individual, firm, partnership, corporation or association shall possess for retail sale in the City, sell or offer for sale at retail, or use any fireworks other than permissible fireworks.
Nothing in this chapter shall prohibit licensed 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 outside the City.
Permissible fireworks for sale to the general public, as such term is used in this chapter, shall be understood to mean fireworks legal for sale and use in the state under the provisions of the Fireworks Licensing and Safety Act, NMSA 1978 § 60-2C-1 et seq., as amended, with the exception of ground audible devices, helicopters, aerial spinners, missile-type rockets, Roman candles, and stick-type rockets.
Permit required. No fireworks may be sold at retail without a retail permit. The permit must be at the location where the retail sale takes place.
Sales to children under 12 years of age or intoxicated persons. It is unlawful to offer for sale or to sell any fireworks to children under the age of 12 years without parental or guardian permission or to any intoxicated person.
Posting of "no smoking" signs in places of sales, storage or display. At all places where fireworks are stored, sold or displayed, the words "no smoking" must be posted in letters at least four inches in height. Smoking is prohibited within 25 feet of any fireworks stock.
Storage, sale or discharge near gasoline supply. No fireworks shall be stored, kept, sold or discharged within 50 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.
Fire extinguishers required. 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 4-ABC.
Age of sales clerks; sales only by licensed firms. A sales clerk who is at least 16 years of age must 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 City fireworks license or permit.
Discharge near sales location. No fireworks shall be discharged within 150 feet of any fireworks retail sales location.
Discharge in or near motor vehicles. 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.
Protection of exposed fuses. Any fireworks devices that are readily accessible to handling by consumers or purchasers in a retail sales location must have their exposed fuses protected in a manner to protect against accidental ignition of any item by 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.
Dates of sales. Fireworks may be sold at retail between June 20 and July 6 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.
Nothing in this chapter 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 Police Department and the fireworks shall be purchased from a distributor licensed by the City, the State Fire Marshal and the Bureau of Alcohol, Tobacco and Firearms at the United States Department of the Treasury.
The Police Chief may adopt reasonable rules and regulations for the use of special fireworks in public displays.