DONA ANA COUNTY, NEW MEXICO

DOÑA ANA COUNTY
ORDINANCE NO._____-

AN ORDINANCE REGULATING FIREWORKS WITHIN THE UNINCORPORATED AREAS OF DOÑA ANA COUNTY AND SETTING FORTH PENALTIES FOR VIOLATION.

            WHEREAS the health, safety and general welfare of the residents of Doña Ana County require regulation of the sale of fireworks and such regulation is necessary to protect the residents of Doña Ana County from injury and damage which can result from the sale of fireworks; and

            WHEREAS N.M.S.A 1978, §4-37-1 provides that the Board of County Commissioners may adopt ordinances to discharge those powers necessary and proper to promote and protect the health, safety, and welfare of County residents; and

            WHEREAS the County is empowered to regulate fireworks to the extent allowed by, and in a manner consistent with, the provisions of the Fireworks Licensing and Safety Act, N.M.S.A 1978, § 60-2C-1, et seq.

            NOW, THEREFORE, BE IT ORDAINED by the Board of County Commissioners of Doña Ana County, New Mexico, that this Ordinance be adopted and enacted as follows:

 

SECTION 1.  SHORT TITLE

            This Ordinance may be cited by number or as the Doña Ana County Fireworks Ordinance.

SECTION 2. ORDINANCE SUPERSEDED; CONFLICTS

            This Ordinance supersedes Ordinance No. 46-86.  If any provision of this Ordinance is found by any court of competent jurisdiction to be in material conflict with N.M.S.A. 1978 §60-2C-1 through §60-2C-11, or any other provision of state law or regulation, the specific provision of state law or regulation shall control over the specific conflicting provision in this Ordinance.

SECTION 3.  PURPOSE

The purpose of this Ordinance is to provide for regulation of fireworks within the unincorporated areas of Doña Ana County consistent with the authority granted Counties under the Fireworks Licensing and Safety Act, N.M.S.A. 1978 §60-2C-1 et seq. 

 

SECTION 4.  DEFINITIONS

  1. “Aerial Shell” means a cylindrical or spherical cartridge containing a lift charge, burst charge and effect composition. Upon firing from a reloadable tube, the lift charge is consumed and the cartridge is expelled into the air.

 

  1. “Aerial Shell Kit-reloadable Tube” means a package or kit containing a cardboard, high-density polyethylene or equivalent launching tube and not more than twelve small aerial shells. Each aerial shell is limited to a maximum of sixty grams of total chemical composition, including lift charges, and the maximum diameter of each shell shall not exceed one and three-fourths inches.
  1. “Bosque” means a cottonwood corridor adjacent to a river.

 

  1. “Chaser” means a paper or cardboard tube venting out the fuse end of the tube that contains no more than twenty grams of chemical composition and travels along the ground, often producing a whistling effect or other noise; an explosive composition not to exceed fifty milligrams may be included to produce a report.
  1. “Chemical Composition” includes all pyrotechnic and explosive composition contained in a fireworks device, but does not include inert materials such as clay used for plugs or organic matter such as rice hulls used for density control.

 

  1. “Cone Fountain” means a cardboard or heavy paper cone containing no more than fifty grams of pyrotechnic composition that has the same effect as a cylindrical fountain. When more than one cone is mounted on a common base, total pyrotechnic composition shall not exceed two hundred grams.
  1. “Crackling Device” means a sphere or paper tube that contains no more than twenty grams of pyrotechnic composition that produces a flash of light and a mild, audible crackling effect upon ignition, which effect is not considered to be an explosion. Crackling devices are not subject to the fifty-milligram limit of firecrackers.

 

  1. “Cylindrical Fountain” means a cylindrical tube containing not more than seventy-five grams of pyrotechnic composition that produces a shower of colored sparks and sometimes a whistling effect or smoke. The device may be provided with a spike for insertion into the ground or a wood or plastic base for placing on the ground or a wood or cardboard handle to be hand held. When more than one tube is mounted on a common base, total pyrotechnic composition shall not exceed two hundred grams.
  1. “Display Distributor” means a person, firm or corporation selling display fireworks.

 

  1. “Display Fireworks” means devices primarily intended for commercial displays that are designed to produce visible or audible effects by combustion, deflagration or detonation, including salutes containing more than one hundred thirty milligrams 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 for permissible fireworks.
  1. “Distributor” means a person, firm or corporation selling fireworks to wholesalers and retailers for resale.

 

  1. “Explosive Composition” means a chemical compound or mixture, the primary purpose of which is to function by explosion, producing an audible effect in a fireworks device.
  1. “Firecracker” means a small, paper-wrapped or cardboard tube containing no more than fifty milligrams of explosive composition that produces noise and a flash of light; provided that firecrackers used in aerial devices may contain up to one hundred thirty milligrams of explosive composition per report.

 

  1. “Fireworks” means devices intended to produce a visible or audible effect by combustion, deflagration or detonation and are categorized as "permissible fireworks" or "display fireworks", but does not include novelties or theatrical pyrotechnics articles.
  1. “Flitter Sparkler” means a narrow paper tube attached to a stick or wire and filled with no more than five grams of pyrotechnic composition that produces color and sparks upon ignition and the paper at one end of the tube is ignited to make the device function.

 

  1. “Ground Spinner” means a small, rapidly spinning device containing no more than twenty grams of pyrotechnic composition venting out an orifice usually on the side of the tube that when ignited produces a shower of sparks and color. "Ground spinner" is similar in operation to a wheel, but is intended to be placed flat on the ground and ignited.
  1. “Helicopter” or “Aerial Spinner” means a tube containing no more than twenty grams of chemical composition with a propeller or blade attached that spins rapidly as it rises into the air with a visible or audible effect sometimes produced at or near the height of flight.

 

  1. “Illuminating Torch” means a cylindrical tube containing no more than one hundred grams of pyrotechnic composition that produces a colored flame upon ignition and may be spiked, based or hand held. When more than one tube is mounted on a common base, total pyrotechnic composition shall not exceed two hundred grams.
  1. “Manufacturer” means a person, firm or corporation engaged in the manufacture of fireworks.

 

  1. “Mine” or “Shell” means a heavy cardboard or paper tube usually attached to a wooden or plastic base and containing no more than sixty grams of total chemical composition, including lift charges, per tube that individually expels pellets of pressed pyrotechnic composition that burn with bright color in a star effect, or other devices propelled into the air, and that contains components producing reports containing a maximum one hundred thirty milligrams of explosive composition per report. A mine may contain more than one tube, but the tubes must fire in sequence upon ignition of one external fuse, must be a dense-packed collection of mine or shell tubes and the total chemical composition, including lift charges, shall not exceed two hundred grams.
  1. “Missile-type Rocket” means a device similar to a stick-type rocket in size, composition and effect that uses fins rather than a stick for guidance and stability and that contains no more than twenty grams of chemical composition.

 

  1. “Multiple Tube Devices” means a device that contains more than one cardboard tube and the ignition of one external fuse that causes all of the tubes to function in sequence. The tubes are individually attached to a wood or plastic base or are dense-packed and are held together by glue, wire, string or other means that securely hold the tubes together during operation. A maximum total weight of five hundred grams of pyrotechnic composition shall be permitted; provided that the tubes are securely attached to a wood or plastic base and are separated from each other on the base by a distance of at least one half inch. The connecting fuses on multiple tube devices shall be fused in sequence so that the tubes fire sequentially rather than all at once.
  1. “Novelties” means devices containing small amounts of pyrotechnic or explosive composition that produce limited visible or audible effects, including party poppers, snappers, toy smoke devices, snakes, glowworms, sparklers or toy caps, and devices intended to produce unique visual or audible effects that contain sixteen milligrams or less of explosive composition and limited amounts of other pyrotechnic composition, including cigarette loads, trick matches, explosive auto alarms and other trick noisemakers.

 

  1. “Permissible Fireworks” or “Consumer Fireworks” means fireworks legal for sale to and use in New Mexico by the general public that comply with the latest construction, performance, composition and labeling requirements established by the United States consumer product safety commission and the United States department of transportation.  In the unincorporated areas of Doña Ana County, “Permissible Fireworks” specifically does not include aerial and ground audible devices.
  1. “Pyrotechnic Composition” means a chemical mixture that on burning and without explosion produces visible or brilliant displays or bright lights or whistles or motion.

 

  1. “Retailer” means a person, firm or corporation purchasing fireworks for resale to consumers.
  1. “Roman Candle” means a heavy paper or cardboard tube containing no more than twenty grams of chemical composition that individually expels pellets of pressed pyrotechnic composition that burn with bright color in a star effect.

 

  1. “Specialty Retailer” means a person, firm or corporation purchasing permissible fireworks for year-round resale in permanent retail stores whose primary business is tourism.
  1. “Stick-type Rocket” means a cylindrical tube containing no more than twenty grams of chemical composition with a wooden stick attached for guidance and stability that rises into the air upon ignition and produces a burst of color or sound at or near the height of flight.

 

  1. “Theatrical Pyrotechnics Article” means a pyrotechnic device for professional use in the entertainment industry similar to permissible fireworks or consumer fireworks in chemical composition and construction but not intended and labeled for consumer use.
  1.             “Toy Smoke Device” means a small plastic or paper item containing no more than one hundred grams of pyrotechnic composition that produces white or colored smoke as the primary effect.

 

  1.             “Wheel” means a pyrotechnic device that is made to attach to a post or other surface and that revolves, producing a shower of color and sparks and sometimes a whistling effect, and that may have one or more drivers, each of which contains no more than sixty grams of pyrotechnic composition and the total wheel contains no more than two hundred grams total pyrotechnic composition.
  1. “Wholesaler” means a person, firm or corporation purchasing fireworks for resale to retailers.

 

  1. “Wildlands” means lands owned by the governing body of a county or municipality that are designated for public recreational purposes and that are covered wholly or in part by timber, brush or native grass.

SECTION 5.  PROHIBITED ACTS; PERMISSIBLE FIREWORKS; NON-PERMISSIBLE FIREWORKS; PERMISSIBLE DATES

  1. Within the unincorporated areas of Doña Ana County, New Mexico it shall be unlawful for any individual, firm, partnership, corporation, or association to possess for retail sale, sell or offer for sale at retail, or possess or use any fireworks other than permissible fireworks, as defined and identified in the Fireworks Licensing and Safety Act, N.M.S.A, §60-2C-1, et seq., as amended, and in this Ordinance.

 

  1. Within the unincorporated areas of Doña Ana County, Permissible fireworks are Ground and hand-held sparkling devices, including:
  1. Cone fountains
  2. Crackling devices
  3. Cylindrical fountains
  4. Flitter sparklers
  5. Ground Spinners
  6. Illuminating torches
  7. Wheels

 

C. The following types of fireworks are non-permissible fireworks and their possession, sale, possession for sale and use is prohibited within the unincorporated areas of Doña Ana County:

1.   All fireworks prohibited under the New Mexico Fireworks Safety Act.

2.  All aerial devices including:

    1. Aerial shell kit-reloadable tubes
    2. aerial spinners
    3. Helicopters
    4. Mines
    5. Missile-type rockets
    6. Multiple tube devices
    7. Roman candles
    8. Shells
    9. Stick-type rockets

 

3.  All ground Audible devices, including:

  1. Chasers
  2. Firecrackers

 

D.  Permissible fireworks may be sold at retail in the unincorporated areas of Doña Ana County, New Mexico, between June 20 and July 6 of each year, six days preceding and including New Year’s Day, three days preceding and including Chinese New Year, September 16, and Cinco de Mayo (May 5) of each year, except that permissible fireworks may be sold all year in permanent retail stores whose primary business is tourism.

SECTION 6.  PUBLIC DISPLAYS

Except as defined in N.M.S.A. 1978, §60-2C-8.1 regarding extreme or severe drought conditions, this ordinance shall not prohibit a person, partnership, corporation, association, or government entity, from at any time sponsoring and conducting an officially supervised and controlled fireworks display. A permit for the display shall be obtained from the County. The display 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 the Treasury.  The Doña Ana County Board of County Commissioners delegates to the County Fire Marshal, the authority to approve permits for the public display of display fireworks.

SECTION 7.  PERMITS FOR PUBLIC DISPLAYS

  1. To obtain a permit for the public display of display fireworks an application shall be submitted at least fifteen (15) days prior to the date of the proposed display to the County Fire Marshal’s Office. The application shall contain the applicant’s name, address and telephone number, a description of the quantity and type of fireworks requested for the proposed display, the time, place and nature of the display event, the time of termination of the event, and the name, address and telephone number of the supplier of the display fireworks and proof that display fireworks will be purchased from a permitted distributor.

 

  1. The proposed display shall not be designed in such a manner as to be hazardous to property or a danger to person or persons, and must follow the National Fire Protection Association Standard 1123 “Standards for Firework Displays”.  After a permit has been issued the sale, possession, use, and distribution of display fireworks for public display shall be lawful for only in connection with that public display of display fireworks.
  1. No permit for public displays of display fireworks shall be transferable to any other person or location.  The permit shall be valid for the location, date, and time specified in the application.  The Fire Marshal or designee may grant an extension of the permit due to inclement weather or for unforeseen events beyond the control of the permittee, which prevent the permitted public display from occurring.   

 

  1. A one hundred dollar ($100.00) permit fee shall be assessed for each public display.  

SECTION 8.  FIREWORKS SALES, APPLICATIONS, GUIDELINES, AND RESTRICTIONS

  1. All Firework sales, applications, guidelines, and restrictions must be in accordance with the provisions of the Fireworks Licensing and Safety Act, N.M.S.A, §60-2C et seq.

 

  1. Fireworks may not be sold at retail without a State Fire Marshal’s Retail Fireworks Permit, County Business Registration, and a County Retail Fireworks Permit.  All permits shall be displayed at the location where the retail sale takes place. 
  1. All places where fireworks are stored, sold or displayed shall be in compliance with the code of safety standards published by the national fire protection association for the manufacture, transportation, storage and retail sales of fireworks and pyrotechnics articles.

 

  1. It is unlawful to offer for sale or to sell fireworks to children under the age of sixteen years or to an intoxicated person.
  1. 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, open flames, and any ignition sources are prohibited within twenty-five (25) feet of fireworks stock.  Barriers must be in place at least twenty-five feet from all sides of a retail stand to ensure that no ignition source, including vehicles, comes with in the designated area.

 

  1. Fireworks shall not be stored, kept, sold or discharged within fifty (50) feet of a gasoline pump or gasoline bulk station or a 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.
  1. All fireworks permittees and licensees shall keep and maintain upon the premises a fire extinguisher bearing an underwriters laboratories incorporated rated capacity of at least five-pound ABC per five hundred square feet of space used for fireworks sales or storage.

 

  1. Sales clerks and ancillary personnel employed or volunteering at temporary retail locations where fireworks are sold shall be at least sixteen years of age. A sales clerk shall be on duty to serve consumers at the time of purchase or delivery. Permissible fireworks may be offered for sale only at state-permitted or state-licensed retail locations.
  1. Fireworks shall not be discharged within one hundred fifty (150) feet of a fireworks retail sales location.

 

  1. Fireworks shall not be sold or used on state forestland, wild lands, or a Bosque. 
  1. A person shall not ignite fireworks within a motor vehicle or throw fireworks from a motor vehicle, nor shall a person place or throw ignited fireworks into or at a motor vehicle or at or near a person or group of people. The discharge of fireworks on County roads and rights-of-way is hereby prohibited.

 

  1. 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 thread-wrapped safety fuse that 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, the entire fuse shall be covered.
  1. All trash, weeds and other readily combustible materials in the immediate area of fireworks stands or storage shall be removed and the area maintained.

 

  1. All temporary fireworks sales stands used solely for the purpose of firework sales shall be dismantled and removed within one (1) week after the sale period has ceased and all rubbish, garbage, and trash must be removed from the premises. 
  2. Any individual or legal entity licensed pursuant to the Fireworks Licensing and Safety Act who wishes to utilize such license or permit for the sale of fireworks within the unincorporated areas of Doña Ana County, New Mexico, shall be required to pay a permit fee of twenty-five dollars ($25.00), to the County Clerk’s Office.  This permit fee shall be in addition to any business registration fees that may be required for the individual or entity to do business in Doña Ana County, New Mexico.
  1. All applications for retail fireworks permits shall be submitted in writing to the County Fire Marshal no later than thirty (30) calendar days prior to the beginning date of sale of fireworks.

 

SECTION 9.  PENALTIES, ENFORCEMENT, AND EXCEPTIONS

A.  In addition to any criminal or civil penalties that may be applicable under the Fireworks Licensing and Safety Act, any individual or legal entity that violates any provision of this Ordinance is guilty of a petty misdemeanor and, upon conviction in any court of competent jurisdiction, including Magistrates Court, shall be punished by a fine of not more than three hundred dollars ($300), and/or imprisonment for not more than ninety (90) days, or both such fine and imprisonment.  The County Fire Marshal, his deputies or designees may at reasonable hours enter and inspect a County fireworks sales permittee’s premises, building, mobile or motor vehicle or temporary or permanent structure to determine compliance with the terms of the County permit and the provisions of this Ordinance.  If any permittee has in his possession any fireworks in violation of this Ordinance, 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 Ordinance, a warrant may be issued for the seizure of fireworks and the fireworks shall be 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 Ordinance applies to the transportation of fireworks by regulated carriers.

B.   Nothing in this Ordinance shall apply to or prohibit any employee of the State Game and Fish Department or the U.S. Fish and Wildlife Service from possessing or utilizing fireworks for the control of game birds or animals or prohibit the County Fire Marshal or any law enforcement officer from possessing or utilizing fireworks in the performance of his duties.

SECTION 10.  SEVERABILITY

The sections and paragraphs of this Ordinance are severable, and if any section or paragraph of this Ordinance is declared invalid by judgment or decree of any court of competent jurisdiction the validity of the remaining provisions of this Ordinance shall not be affected.

 

SECTION 11.  EFFECTIVE DATE

This Ordinance shall take effect thirty days after being approved by the Board of County Commissioners and recorded with the County Clerk.

APPROVED AND ENACTED this _____ day of ____________ 2007

                                                                       

                                                                           BOARD OF COUNTY COMMISSIONERS

OF DOÑA ANA COUNTY, NEW MEXICO

________________________________
Karen G. Perez, Chairwoman

____________________________________
D. Kent Evans, Vice-Chairman

____________________________________
Oscar Vásquez Butler, District 1

____________________________________
Dolores Saldaña-Caviness, District 2

____________________________________
William J. McCamley, District 5

 

ATTEST:

 

_________________________________
Rita Torres, County Clerk