Unlawful Fireworks and Pyrotechnics in New York

Under the New York Penal Law, you can be prosecuted not only for using fireworks, but also for the possession, sale, and distribution of them. You may think you know what fireworks are, but the legal definition is highly complex and detailed.

Definition of “Fireworks” Under the New York Penal Law

The definition of fireworks under the New York Penal Law generally contemplates airborne fireworks for commercial use. It is different from the term “sparklers,” or sparkling devices, which are defined as hand-held or ground devices for consumer use.

Examples

In some counties, other than New York City, sparkling devices are legal. In order to gain a better understanding of what constitutes illegal fireworks, and some of the circumstances under which you may be charged with the unlawful use, possession, sale or distribution of them, it is important to be aware of some examples:

If you have what qualifies as a sparkling device and reside in a county where the device is legal, and you give that device to an individual who is under 18 years of age, then you can be charged with illegal use. Persons under 18 are prohibited from using sparkling devices even in counties where they are legal.

Suppose you want to purchase sparkling devices and use them in a county where they are legal, and you decide to buy them on May 15^th. Purchasing even legal sparklers outside of the legally authorized time periods of June 1st to July 5^th, or December 26^th to January 2^nd, at designated locations is illegal, and you would be charged with a crime.

Your community organization is sponsoring a display of fireworks in the park, and you have obtained the necessary permit and believe you followed the rules. The original operator listed on your permit called in sick, so an individual who is a member of your organization will operate the fireworks. If the substitute is not a certified pyrotechnics operator, then you can be charged with operating illegal fireworks, even though you obtained a permit.

The Legal Definitions of Unlawful Fireworks and Pyrotechnics

A. Fireworks

The relevant statutes governing fireworks are Articles 270 and 405 of the New York Penal Law, which describes the elements of the crimes, potential degrees that can be charged, and what constitutes legal use and possession under certain conditions.

It is important to be familiar with these technical definitions so that you know whether you are dealing with fireworks that are covered under the law. We will outline the basic parameters of the law in this article, but it is important to consult an attorney regarding your specific case.

Article 270 of the New York Penal Law- Defines fireworks and dangerous fireworks as intended mainly for commercial use and “designed to produce visible and/or audible effects by combustion, deflagration or detonation.”

Article 270.1.(a)(i).- The law also defines the chemical composition of these fireworks and states that it exceeds the standards for consumer fireworks described by the American Pyrotechnic Association, Standard 87-1.

Article 270.1. (a)(iii)-(vi)– Describes several types of consumer fireworks under the definition of fireworks, including, “sky rockets, bottle rockets, missile rockets, blank cartridges, blank cartridge pistols, toy cannon firecrackers, or any mixture of the explosive or inflammable compound, tablets or other device used and sold as fireworks.”

Sparkling devices are also listed under the definition of fireworks but are expressly distinguished as ground-based or hand-held devices that create a spray of white, gold, or colored sparks. These devices do not go up in the air or explode.

Examples of sparkling devices described in Article 270.1. (a)(vi) (1) (A)-(C) include a cylindrical fountain which is a cylindrical tube that contains a specified chemical composition and when lit it produces a spray of sparks, a cone fountain, similar to a cylindrical fountain, and a wooden sparkler with a stick coated in a pyrotechnic compound. When the tip of the device is lit, it creates a shower of sparks.

Article 270.1. (a) (vi) (2) (A) (B)– Lists novelties, which do not require approval from the United States Department of Transportation, and are not regulated as explosives, if they are manufactured and packaged as party poppers or snappers. These are small devices containing a minimal amount of explosive material.

What is the definition of dangerous fireworks?

The law also defines “dangerous fireworks” as capable of causing serious physical injury.” See Article 270.1. (b). The law describes the number of explosives contained in dangerous fireworks but includes sparkling devices in this definition if the city involved has more than one million persons. This is the justification for certain counties such as New York City making sparkling devices illegal.

Although most individuals cannot use fireworks, the law makes exceptions in Article 270.3. For the following situations:

Railroads, retailers, wholesalers, and distributors can transport or ship fireworks subject to certain requirements.
Explosives used for blasting are permitted.
Transportation, storage and use of fireworks in connection with the entertainment industry such as movies and television are permitted.
Use by the United States Military, state departments and the federal government is permitted.

In addition, the following are excluded from the definition of illegal fireworks in Article 270.1. (c):

Flares that are used by railroads or marine that distress signals approved by the United States Coast Guard.
Toy pistols with paper caps can be used and sold.
Bank security devices are permitted subject to parameters set forth in the law, including the number of explosives and storage requirements.
Sparkling devices in cities with fewer than one million persons are legal. Nevertheless, the storage and sale of sparklers are still subject to regulation by the National Fire Protection Association (NFPA). See NFPA 1124.

Also, there are several other regulations governing the use of sparkling devices, including the dates they can be purchased, authorized retailers and required certifications. See Title 9 of the Official Compilation of New York Codes, Rules, and Regulation, Part 225 Sparkling Devices, and the NY State 2017 Uniform Code Supplement (Explosives and Fireworks): 2017 Uniform Code Excerpt: Sparkling Devices.

Who can obtain permits to use fireworks legally?

Other exceptions are contained in Article 405 which describes the persons and entities who can obtain permits to use fireworks legally. If you want to be able to purchase and display fireworks in a public place, there are specific and detailed legal requirements set forth in Article 405. Some of these include the following:

The application for a permit must be made in writing to the agency designated under Article 405 to issue permits.
The permit must include details, including, the location, the name of the body that is sponsoring the fireworks display and that the individual responsible for discharging the fireworks is certified as a pyrotechnician under the General Business Law and the New York Labor Law, Article 16. See Article 405.2. (a)-(g).
In addition, there are requirements under the Labor Law regarding who can use fireworks, including that the individual must be 18 years of age or older, and that there is specific equipment that must be used as well as a minimum of two people operating the fireworks.
Applicants must also furnish a bond as part of the permit process.

If you do not have a permit for fireworks under Article 405, one or more of the following elements must be true:

You used, possessed, exploded or caused to explode any fireworks or dangerous fireworks.
You offered or exposed fireworks for sale or sold or furnished fireworks.
You offered or exposed fireworks for sale or sold or furnished fireworks worth five hundred dollars or more.
You offered or exposed fireworks for sale or sold or furnished fireworks to a person under eighteen years of age.
You possess fireworks that are worth one hundred fifty dollars or more. In that circumstance, it is presumed that you intend to sell the fireworks.

Example of crimes that you could be charged under Article 270:

Possession of Fireworks

If you have fireworks in your possession even without using or exploding them, you can be charged under Article 270. If fireworks are in your home or car, for example, and you are discovered with them, that is a crime. Exploding fireworks yourself in any situation, absent a permit or other legal exception, is a crime.

Offer or Sale of Fireworks

If you offer fireworks or show them for sale, you can be charged with a crime. For example, just discussing that you have fireworks for sale or showing them to someone who wants to purchase them is a crime. Engaging in the same activity with a person under eighteen will result in an additional criminal charge.

Offering or selling fireworks valued at $500.00 or more is also a crime.

Possession of Fireworks Worth $150.00 or More

Having fireworks worth one hundred fifty dollars or more can subject you to a criminal charge of selling fireworks even if you did not intend to sell them. For instance, if someone temporarily leaves this amount of fireworks with you and you are caught with them, you could be charged with illegally selling fireworks.

B. Pyrotechnics

Pyrotechnics are defined as chemical reactions that are controlled and timed to produce the effects of heat, gas or sound, such as a flash of light, smoke or fog. See Article 405.10 1 (v)-(x). Pyrotechnics are also included under the definition of fireworks in Article 270, but there are specific requirements unique to the use of pyrotechnics. Article 270.1. (a)(ii).

Although pyrotechnic devices have a chemical composition like consumer fireworks, the law states that they are not labeled as consumer fireworks and are regulated by the United States Department of Transportation in 49 CFR 172.101. In addition, permits for indoor pyrotechnic performances are governed by Article 405, which describes the requirements in detail. If you are planning an indoor pyrotechnic display, you should be fully familiar with the legal permit requirements to ensure that you avoid liability. The failure to have a permit to use pyrotechnics indoors can result in serious penalties, which we discuss in detail further in this article.

Related New York State Offenses

There are several related state criminal charges that can be brought in connection with the use of illegal fireworks. You could be charged with reckless endangerment under New York Penal Law, Article 120.20 if your actions put others at substantial risk of physical injury.

This is a class A misdemeanor. Another potential charge is for criminal nuisance in the second degree, which involves knowingly or recklessly creating a situation that endangers the safety of “a considerable number of persons.” New York Penal Law, Article 240.45 1. This is a class B misdemeanor.

Agencies Responsible for Prosecuting Illegal Fireworks in New York

The New York District Attorney is responsible for prosecuting crimes concerning the use of illegal fireworks. Other agencies, including the NY State Department of Homeland Security, Office of Fire Prevention and Control, regulate the use of sparkling devices.

Penalties for Violating New York Penal Law, Article 270

The use of illegal fireworks or dangerous fireworks is classified as either a violation, a misdemeanor or a felony, depending upon the activity you engaged in.

If you used, possessed, exploded or caused any fireworks or dangerous fireworks to explode, you can be charged with a violation, which is an offense that is something other than a traffic violation and is punishable by no more than fifteen days in prison.
If you offered or exposed fireworks for sale or sold or furnished fireworks or dangerous fireworks, you can be charged with a class B misdemeanor, that has a sentence of up to three months in prison and up to a $500.00 fine.
If you offered or exposed fireworks for sale or sold or furnished fireworks worth five hundred dollars or more, you can be charged with a class A misdemeanor, punishable by between fifteen days and no more than one year in prison. A fine of up to $1,000.00 may also be imposed.
If you offered or exposed fireworks for sale or sold or furnished fireworks, dangerous fireworks or sparkling devices to a person under eighteen years of age, you can be charged with a class A misdemeanor, and receive a sentence as described above.
If you possess fireworks that are worth one hundred fifty dollars or more, you can be charged with a class B misdemeanor as discussed above, because it is presumed that you intended to sell the fireworks.

Penalties for Violating Article 405.10

If you do not obtain a permit to use pyrotechnics indoors, there are a range of penalties from a misdemeanor to a felony, that you can face.

If you knowingly fail to get a permit to use pyrotechnics indoors and intentionally light or explode pyrotechnics unlawfully, you are guilty of unpermitted use of indoor pyrotechnics in the second degree, a class A misdemeanor, punishable by between fifteen days and no more than one year in prison.

A fine of up to $1,000.00 may also be imposed. A repeat violation within the last five years is unpermitted use of indoor pyrotechnics in the first degree and is a class E felony, that is punishable by up to four years in prison.

There are additional penalties for aggravated unpermitted use of indoor pyrotechnics. If you light or detonate indoor pyrotechnics and recklessly injure a person or damage property that is over $250.00, you are guilty of aggravated unpermitted use of indoor pyrotechnics in the second degree. This is a class E felony as well.

You commit aggravated unpermitted use of indoor pyrotechnics in the first degree if you recklessly cause serious physical injury or kill another person by detonating pyrotechnics. This is a class D felony and is punishable by a minimum of two years and up to seven years in prison.

Legal Defenses to the Use of Fireworks

The burden of proof of showing that fireworks were used illegally is on the prosecutor, so it is important for you to know how you can defend your charges. These are some common defenses that you may raise if charged.

Use of Sparkling Device in a County Where it is Legal:

If you used what is defined as a sparkling device under the law, in a county in New York State where such use is deemed legal, then you can not be prosecuted. However, you must still meet the requirements of legal use, including being over 18 years old.

You Have a Valid Permit:

Having a valid permit is a defense provided that on the date of the fireworks or pyrotechnics display you adhere to the terms of the permit and none of the agreed upon conditions have changed.

Your Activity Falls Within an Exception Under Article 270.3:

If your activity falls within an exception as described earlier in this article, then you have a defense. For example, if you are using or transporting fireworks as part of a television show production, then you likely have a defense.

Why You Need A Lawyer

Based upon the complexity and technical nature of the legal definitions of fireworks and pyrotechnics, as well as the nuances of the statutes pertaining to the illegal use of fireworks and the related crimes discussed in this article, you must consult with attorneys like us who specialize in these crimes. We have attorneys devoted to serving clients like you who could be charged with these crimes.

Many of our attorneys are former prosecutors and have unique knowledge of how government agencies and district attorneys investigate and prosecute cases like the use of unlawful fireworks and pyrotechnics. We know that it is the burden of the prosecutor to prove your case, and we are in the best position to defend you because we have seen exactly how the prosecutor builds his or her case.

If you believe that you have been involved in using, possessing or selling unlawful fireworks or pyrotechnics, there is no substitute for consulting an experienced law firm such as ours. For questions about these crimes, or to discuss your case confidentially with one of our criminal defense attorneys, do not hesitate to contact us at (347) 263-8825.