HOT OFF THE PRESS:
MICHIGAN ATTORNEY GENERAL GIVES OPINION ON MICHIGAN FIREWORKS STATUTE:
The Attorney General for the State of Michigan has just released an opinion (Opinion No. 7266 dated June 12, 2012) regarding the new fireworks statute and how it relates to the zoning and building ordinances of local municipalities, townships and jurisdictions where vendors may want to sell consumer fireworks.
The Attorney General has opined as follows:
“The Michigan Fireworks Safety Act, 2011 PA 256, MCL 28.451 et seq., does not preempt a generally applicable local ordinance regulating all use of temporary vending facilities because the ordinance has only an incidental effect on the sale, display, and distribution of fireworks, and where both the Act and the ordinance can be enforced. Therefore, so long as the local ordinance does not prohibit fireworks vendors from undertaking their commercial operations in any way that other vendors may undertake their operations, the ordinance is not preempted by the Act.
Sellers of consumer grade fireworks subject to the Michigan Fireworks Safety Act, 2011 PA 256, MCL 28.451, et seq., must comply with all provisions of the 2009 edition of National Fire Protection Association 101 and the 2006 edition of National Fire Protection Association 1124, including section 184.108.40.206, to the extent the provisions do not conflict with the Act. MCL 28.455(1)(a). “
This translates to the need of consumer fireworks vendors to review the local jurisdiction where they may want to place a tent to determine if the jurisdiction has any ordinances that must be complied with in order to establish and operate the business. This may very well require the vendor to apply for a permit. At this late date that may require special meetings and extra fees in order to get the tents up and running before the July 4th season this year.
Consumer Fireworks are now legal for sale and possession in the State of Michigan.
"Consumer fireworks" means fireworks devices that are designed to produce visible effects by combustion, that are required to comply with the construction, chemical composition, and labeling regulations promulgated by the United States consumer product safety commission under 16 CFR parts 1500 and 1507, and that are listed in APA standard 87-1, 3.1.2, 3.1.3, or 3.5. Consumer fireworks does not include low-impact fireworks. MCL 28.452(e).
The sale and possession of Consumer Fireworks are regulated within the state pursuant to Michigan Fireworks Safety Act, MCL 28.451 et seq. which was enacted as:
"AN ACT to revise, consolidate, and codify the laws relating to certain fireworks; to regulate the purchase, possession, sale, and use of certain fireworks; to establish a fireworks safety fund; to establish a fireworks safety fee; to provide for the transfer and expenditure of funds; to prescribe the powers and duties of certain state agencies; to provide for penalties and remedies; and to repeal acts and parts of acts."
The statute requires retail sellers of Consumer Fireworks, "retailers", ("Retailer" means a person who sells consumer fireworks or low-impact fireworks for resale to an individual for ultimate use." MCL 28.452(w)), to procure a "Consumer Fireworks Certificate" through the Michigan Department of Licensing and Regulatory Affairs (LARA) by application in order to sell consumer fireworks. The statute allows retail sellers of Consumer Fireworks to sell Consumer Fireworks only from a retail location satisfies the applicable requirements of NFPA 101 and NFPA 1124 which are not in conflict with this act. "NFPA 1124" means the "Code for the Manufacture, Transportation, Storage, and Retail Sales of Fireworks and Pyrotechnic Articles", 2006 edition, developed by NFPA. MCL 28.452(r)."
APPLICATION FOR CONSUMER FIREWORKS CERTIFICATE:
You will need to work with LARA as to the "Consumer Fireworks Certificate". The process for procuring a proper certificate must be submitted by April 1 of the year in which you want to sell and must be submitted each year.
"You must complete an application to the bureau using the online system at www.michigan.gov/bfs including all required documents and fees.
The applicant must pay an application fee of $1000 for a permanent building or structure or $600 for a retail location that is not a permanent building or structure. The location must meet National Fire Protection Association (NFPA) requirements.
The applicant must also provide a copy of their current sales tax license at the time of application. The application must be submitted no later than April 1st of the year the fireworks are sold. The retailer must also have a valid federal tax identification number unless the retailer is a sole proprietorship. In addition, any structure that is used for retail fireworks sales must be approved by the Bureau of Fire Services."
LARA - FAQ REGARDING MICHIGAN FIREWORKS SAFETY ACT
CONSUMER FIREWORKS RETAIL STORES (CRFS):
Any structure that is used for retail fireworks sales must be approved by the Bureau of Fire Services (BFS). LARA-BFS has now established emergency rules for this consumer fireworks season and these require the submission of plans for the CFRS to BFS. See Emergency Rules 8 and 9 for specifics. A site plan of some nature must be filed with the BFS when you submit your application. The site plan must also be provided to the local Fire Department/Inspector/Marshall at the same time as well so the Fire Department will have the site plan in the event of an incident requiring their services. You will need to work with the local municipality, township, village, or city where the retail location will be located as to compliance of the retail sales location with their zoning ordinances and the building requirements of NFPA 1124 as well. This NFPA 1124 code deals with everything from safe distance issues to storage requirements. This may require the submission of a building permit application and site plan for review by the jurisdiction's planning commission because the statute, Emergency Rules, NFPA 1124, and the Michigan Building Code have some inconsistencies within them and the local municipalities are not going to be fully educated on these rules nor the implementation of them. This can be a very difficult and complicated process. I am well aware of the requirements relating to this new "regulatory" process and I am able to help you understand your options, guide you through this compliance process, and locate the other appropriate professionals that an applicant will need to properly succeed in the process.
Michigan Department of Licensing and Regulatory Affairs (LARA)
- Main state site and location of Application for certificate
LARA Frequently Asked Questions - Michigan Fireworks Safety Act
LARA Fireworks Safety Act Emergency Rules