[HISTORY: Adopted by the Board of County Commissioners of Doña Ana County 11-14-2007 by Ord. No. 233-07; amended in its entirety 4-11-2017 by Ord. No. 289-2017. Subsequent amendments noted where applicable.]
This chapter may be cited by number or as the "Doña Ana County Fireworks Ordinance."
This chapter supersedes Ordinance No. 46-86. If any provision of this chapter is found by any court of competent jurisdiction to be in material conflict with NMSA § 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 chapter.
The purpose of this chapter 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, NMSA § 60-2C-1 et seq.
As used in this chapter, the following terms shall have the meanings indicated:
- AERIAL SHELL
- 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.
- AERIAL SHELL KIT-RELOADABLE TUBE
- A package or kit containing a cardboard, high-density polyethylene or equivalent launching tube and not more than 12 small aerial shells. Each aerial shell is limited to a maximum of 60 grams of total chemical composition, including lift charges, and the maximum diameter of each shell shall not exceed 1 3/4 inches.
- A cottonwood corridor adjacent to a river.
- A paper or cardboard tube venting out the fuse end of the tube that contains no more than 20 grams of chemical composition and travels along the ground, often producing a whistling effect or other noise; an explosive composition not to exceed 50 milligrams may be included to produce a report.
- 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.
- CONE FOUNTAIN
- A cardboard or heavy paper cone containing no more than 50 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 200 grams.
- CRACKLING DEVICE
- A sphere or paper tube that contains no more than 20 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.
- CYLINDRICAL FOUNTAIN
- A cylindrical tube containing not more than 75 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 200 grams.
- DISPLAY DISTRIBUTOR
- A person, firm or corporation selling display fireworks.
- DISPLAY FIREWORKS
- 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 130 milligrams 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 for permissible fireworks.
- A person, firm or corporation selling fireworks to wholesalers and retailers for resale.
- EXPLOSIVE COMPOSITION
- A chemical compound or mixture, the primary purpose of which is to function by explosion, producing an audible effect in a fireworks device.
- A small, paper-wrapped or cardboard tube containing no more than 50 milligrams of explosive composition that produces noise and a flash of light; provided that firecrackers used in aerial devices may contain up to 130 milligrams of explosive composition per report.
- 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.
- FLITTER SPARKLER
- 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.
- GROUND SPINNER
- A small, rapidly spinning device containing no more than 20 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. A ground spinner is similar in operation to a wheel, but is intended to be placed flat on the ground and ignited.
- HELICOPTER OR AERIAL SPINNER
- A tube containing no more than 20 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.
- ILLUMINATING TORCH
- A cylindrical tube containing no more than 100 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 200 grams.
- A person, firm or corporation engaged in the manufacture of fireworks.
- MINE or SHELL
- A heavy cardboard or paper tube usually attached to a wooden or plastic base and containing no more than 60 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 130 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 200 grams.
- MISSILE-TYPE ROCKET
- 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 20 grams of chemical composition.
- MULTIPLE-TUBE DEVICES
- 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 holds the tubes together during operation. A maximum total weight of 500 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 1/2 inch. The connecting fuses on multiple-tube devices shall be fused in sequence so that the tubes fire sequentially rather than all at once.
- Devices containing small amounts of pyrotechnic or explosive composition that produce limited visible or audible effects, including party poppers, snappers, toy smoke devices, snakes, glow worms, sparklers or toy caps, and devices intended to produce unique visual or audible effects that contain 16 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.
- PERMISSIBLE FIREWORKS or CONSUMER FIREWORKS
- 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 other than when sold by specialty retailers to non-Doña Ana County residents in conformity with the requirements of, and to the extent allowed by, §§ 200-5, 200-7 and 200-8.
- PYROTECHNIC COMPOSITION
- A chemical mixture that on burning and without explosion produces visible or brilliant displays or bright lights or whistles or motion.
- A person, firm or corporation purchasing fireworks for resale to consumers.
- ROMAN CANDLE
- A heavy paper or cardboard tube containing no more than 20 grams of chemical composition that individually expels pellets of pressed pyrotechnic composition that burn with bright color in a star effect.
- SPECIALTY RETAILER
- A person, firm or corporation purchasing permissible fireworks for year-round resale in permanent retail stores whose primary business is tourism.
- STICK-TYPE ROCKET
- A cylindrical tube containing no more than 20 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.
- THEATRICAL PYROTECHNICS ARTICLE
- 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.
- TOY SMOKE DEVICE
- A small plastic or paper item containing no more than 100 grams of pyrotechnic composition that produces white or colored smoke as the primary effect.
- 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 60 grams of pyrotechnic composition and the total wheel contains no more than 200 grams of total pyrotechnic composition.
- A person, firm or corporation purchasing fireworks for resale to retailers.
- 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.
Within the unincorporated areas of Doña Ana County, New Mexico, it shall be unlawful for any individual, firm, partnership, corporation, or association to sell or offer for sale at retail, or use any fireworks other than permissible fireworks, as defined and identified in the Fireworks Licensing and Safety Act, NMSA § 60-2C-1 et seq., as amended, and in this chapter.
The following types of fireworks are nonpermissible fireworks, and their use is prohibited within the unincorporated areas of Doña Ana County:
All fireworks prohibited under the New Mexico Fireworks Safety Act.
Possession and sale of aerial and ground audible devices by specialty retailers.
Notwithstanding the prohibitions contained in § 200-5A, C and D, aerial and ground audible devices may be possessed for retail sale, offered for sale at retail, and sold by specialty retailers to non-Doña Ana County residents in conformity with the requirements of this chapter; however, such aerial and ground audible devices may not be used by any individual, firm, partnership, corporation or other entity within the unincorporated areas of Doña Ana County. Additionally possession and sales of aerial and ground audible devices shall be limited to specialty retailers whose permanent retail location is located within 1/4 mile of a federal interstate highway access ramp and at least 1/4 of a mile from any other specialty retailer that existed at the time this chapter is adopted and at least 1,000 feet from any municipality.
Purpose. The purpose of the subsection is to allow limited sales of certain fireworks by specialty retailers. Existing specialty retailers have invested in physical facilities specifically designed for the storage and sale of fireworks, including fireworks that are not permissible fireworks under this chapter, and are currently employing County residents and paying County taxes. Sales by specialty retailers located along federal interstate highways, whose primary business is tourism, to non-Doña Ana County residents of otherwise nonpermissible fireworks will have minimal negative impacts on the residents of Doña Ana County. Additional persons shall be allowed to become licensed as specialty retailers, having knowledge of the restrictions under this chapter, provided that they are at least 1/4 of a mile from an existing specialty retailer and 1,000 feet from any municipality as provided in Subsection D(1) of this section. The purpose of the distance requirement between specialty retailers and municipalities is to protect the health, safety and welfare of the residents of Doña Ana County in the event of an unforeseen incident at a specialty retailer involving the fireworks.
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. Specialty retailers may sell aerial and ground audible devices to non-Doña Ana County resident throughout the year in conformity with the requirements of this chapter.
Notwithstanding the prohibitions contained in § 200-5A and C, aerial and ground audible devices may be possessed in the unincorporated areas of Doña Ana County by specialty retailers for the purpose of distributing such fireworks to one or more retail or specialty retailer locations not within the unincorporated areas of Doña Ana County.
NOTE: Ordinance No. 289-2017 prohibited the possession for sale all fireworks prohibited under the New Mexico Fireworks Safety Act, all aerial devices and ground audible devices. The Third Judicial District Court of New Mexico ruled in the Mr. W Fireworks, Inc. v. Board of Commissioners of Dona Ana County, New Mexico, Cause No. D-307-CV-201801434, that portions of § 200-5A and C prohibiting "possession" of ground audible and aerial devices conflicted with state law and therefore are null and void. Reference to "possession for sale" and "possession" in § 200-5A and C have therefore been removed.
Except as defined in NMSA § 60-2C-8.1 regarding extreme or severe drought conditions, this chapter 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 Chief the authority to approve permits for the public display of display fireworks.
To obtain a permit for the public display of display fireworks, an application shall be submitted at least 15 days prior to the date of the proposed display to the County Fire Chief'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.
The proposed display shall not be designed in such a manner as to be hazardous to property or a danger to a 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 only in connection with that public display of display fireworks.
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 County Fire Chief 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.
All firework sales, applications, guidelines, and restrictions must be in accordance with the provisions of the Fireworks Licensing and Safety Act, NMSA § 60-2C-1 et seq.
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.
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.
It is unlawful to offer for sale or to sell fireworks to children under the age of 16 years or to an intoxicated person.
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 25 feet of fireworks stock. Barriers must be in place at least 25 feet from all sides of a retail stand to ensure that no ignition source, including vehicles, comes within the designated area.
Fireworks shall not be stored, kept, sold or discharged within 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.
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 500 square feet of space used for fireworks sales or storage.
Sales clerks and ancillary personnel employed or volunteering at temporary retail locations where fireworks are sold shall be at least 16 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.
Fireworks shall not be discharged within 150 feet of a fireworks retail sales location.
Fireworks shall not be sold or used on state forestland, wild lands, or a bosque.
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.
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.
All trash, weeds and other readily combustible materials in the immediate area of fireworks stands or storage shall be removed and the area maintained.
All temporary fireworks sales stands used solely for the purpose of firework sales shall be dismantled and removed within one week after the sale period has ceased, and all rubbish, garbage, and trash must be removed from the premises.
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 as set forth in Chapter 179, Fees and Permits, 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.
All applications for retail fireworks permits shall be submitted in writing to the County Fire Marshal no later than 30 calendar days prior to the beginning date of sale of fireworks.
All specialty retailers shall be required to post a notice in the licensed premises in a location conspicuous to the public, the form of which shall be approved by the County Fire Chief's Office, providing notice to all customers of the prohibitions of this chapter, including, at a minimum, the prohibitions under this chapter regarding the possession and use of permissible and nonpermissible fireworks within the unincorporated areas of Doña Ana County.
All specialty retailers shall require any purchaser of fireworks that are not permissible fireworks to produce identification containing the photograph of the purchaser and listing an address outside of Doña Ana County prior to completing such sale. Identification shall be sufficient for purposes of this requirement if it appears to be issued by one of the states or territories or agencies of the United States of America or foreign country, provided that it contains a photograph and address outside of Doña Ana County.
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 chapter is guilty of a petty misdemeanor and, upon conviction in any court of competent jurisdiction, including Magistrates Court, shall be punished as set forth in Chapter 1, General Provisions, Article III, General Penalty. The County Fire Chief, 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 chapter. If any permittee 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 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.
Nothing in this chapter shall apply to or prohibit any employee of the State Game and Fish Department or the United States Fish and Wildlife Service from possessing or utilizing fireworks for the control of game birds or animals or prohibit the County Fire Chief or any law enforcement officer from possessing or utilizing fireworks in the performance of his duties.