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AB-1949 Explosives: flamethrowing devices.(2017-2018)

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Date Published: 04/19/2018 04:00 AM
AB1949:v96#DOCUMENT

Amended  IN  Assembly  April 18, 2018
Amended  IN  Assembly  April 05, 2018
Amended  IN  Assembly  March 15, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 1949


Introduced by Assembly Member Santiago

January 29, 2018


An act to amend Sections 12750, 12755, 12756, 12757, and 12761 of the Health and Safety Code, relating to explosives.


LEGISLATIVE COUNSEL'S DIGEST


AB 1949, as amended, Santiago. Explosives: flamethrowing devices.
Existing law prohibits a person from using or possessing a flamethrowing device without a valid flamethrowing device permit, as issued by the State Fire Marshal if specified conditions are met. Existing law provides that any person who uses or possesses any flamethrowing device without a valid flamethrowing device permit is guilty of a public offense, as provided. Existing law defines a flamethrowing device as any nonstationary and transportable device designed or intended to emit or propel a burning stream of combustible or flammable liquid a distance of at least 10 feet.
This bill would instead define a Tier I flamethrowing device as any nonstationary and transportable device designed or intended to emit or propel a burning stream of combustible or flammable liquid a distance of at least 10 feet and would require additional conditions to be met before the State Fire Marshal could issue or renew a permit to use and possess this type of a Tier I flamethrowing device, including that the applicant or permitholder have a valid pyrotechnic operator license. The bill would also define a Tier II flamethrowing device as either any stationary, nonstationary, or transportable device designed or intended to emit or propel a burning stream of combustible or flammable liquid a distance of at least 2 feet, but not exceeding 10 feet, or any stationary, nonstationary, or transportable device designed or intended to emit or propel a burning stream of combustible or flammable gas a distance of at least 10 feet. The bill would require specified conditions to be met before the State Fire Marshal could issue or renew a permit to use and possess a Tier II flamethrowing device, including that the applicant or permitholder have a valid pyrotechnic operator license. The bill would prohibit a seller of a Tier I or Tier II flamethrowing device, subject to criminal penalty, from selling the device to a person without the applicable who does not possess a valid Tier I flamethrowing device permit. By expanding the scope of a crime, the bill would create a state-mandated local program. The bill would provide that, would, as of January 1, 2018, a manufacturer of a Tier I or Tier II flamethrowing device sold in this state, whose product is used to perpetuate negligent property damage or bodily harm or death, shall be held strictly liable for costs incurred by the local or state governments or damages sought by victims or family members of victims, in addition to any other damages available under existing law. The bill would, after January 1, 2019, exempt from criminal liability, for using or possessing a flamethrowing device without a valid flamethrowing device permit, a person who purchased or possessed a Tier II flamethrowing device before January 1, 2019. prohibit a person from distributing, selling, or offering for sale a Tier II flamethrowing device in California unless the device bears a specified safety warning. The bill would also provide that a person who sells a flamethrowing device in violation of these provisions is jointly and severally liable in any civil action for damages caused by that device. The bill would also make conforming changes.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 12750 of the Health and Safety Code is amended to read:

12750.
 (a) For purposes of this part, the following definitions shall apply:
(1) “Tier I flamethrowing device” means any nonstationary and transportable device designed or intended to emit or propel a burning stream of combustible or flammable liquid a distance of at least 10 feet.
(2) “Tier II flamethrowing device” means either of the following:
(A)  Any stationary, nonstationary, or transportable device designed or intended to emit or propel a burning stream of combustible or flammable liquid a distance of at least two feet, but not exceeding 10 feet.
(B) Any stationary, nonstationary, or transportable device designed or intended to emit or propel a burning stream of combustible or flammable gas a distance of at least 10 feet.
(3) “Permitholder” means a person who holds a flamethrowing device permit issued pursuant to this part.
(b) This part does not apply to any stationary, nonstationary, or transportable device designed or intended to emit or propel a burning stream of combustible or flammable liquid or gas a distance of less than two feet.

SEC. 2.

 Section 12755 of the Health and Safety Code is amended to read:

12755.
 (a) No A person shall not use or possess a Tier I or Tier II flamethrowing device, and no seller of a Tier I or Tier II flamethrowing device shall sell the device to a person in the state, device without a valid flamethrowing device permit issued by the State Fire Marshal pursuant to this part. part, and a person shall not sell a Tier I flamethrowing device to a person who does not possess a valid Tier I flamethrowing device permit issued pursuant to this part.

(b)As of January 1, 2018, a manufacturer of a Tier I or Tier II flamethrowing device sold in this state, whose product is used to perpetuate negligent property damage or bodily harm or death, shall be held strictly liable for costs incurred by the local or state governments or damages sought by victims or family members of victims, in addition to any other damages available under existing law.

(b) As of January 1, 2018, a person shall not distribute, sell, or offer for sale a Tier II flamethrowing device in California unless the device bears the following safety warning: “STATE OF CALIFORNIA SAFETY WARNING: This is an inherently dangerous device. Users must comply with all established rules, laws, and regulations from all applicable fire and law enforcement agencies. Modification of this device and/or failure to comply with open flame laws is subject to punishment according to the California Penal Code and/or liability provisions outlined in the California Health and Safety Code.”
(c) A person who sells a flamethrowing device in violation of subdivision (a) or (b) shall be jointly and severally liable in any civil action for damages caused by that device.

SEC. 3.

 Section 12756 of the Health and Safety Code is amended to read:

12756.
 The State Fire Marshal shall adopt regulations to administer this part and establish standards for the background investigation of an applicant for, and holder of, a flamethrowing device permit, and for the use, storage, and transportation of a Tier I or Tier II flamethrowing device. In adopting these regulations, the State Fire Marshal shall consult with the Department of Justice regarding regulations for the use and possession of destructive devices (Chapter 12.5 (commencing with Section 970) of Division 1 of Title 11 of the California Code of Regulations). These regulations for the use and possession of destructive devices may provide suggestions for potential methods to utilize in developing standards and shall serve as guidance only.

SEC. 4.Section 12757 of the Health and Safety Code is amended to read:
12757.

(a)The State Fire Marshal may issue or renew a permit to use and possess a Tier I or Tier II flamethrowing device only if both of the following conditions are met:

(1)The applicant or permitholder is not addicted to any controlled substance.

(2)The applicant or permitholder meets the other standards specified in regulations adopted pursuant to Section 12756.

(b)In addition to the requirements in subdivision (a), the State Fire Marshal may issue or renew a permit to use and possess a Tier I flamethrowing device only if all of the following conditions are met:

(1)The applicant or permitholder has a valid certificate of eligibility issued by the Department of Justice pursuant to Section 26710 of the Penal Code.

(2)The applicant or permitholder has a valid pyrotechnic operator license from the State Fire Marshal pursuant to Section 12578.

(3)The applicant or permitholder has any necessary permits from all applicable fire and law enforcement agencies, if required.

(c)In addition to the requirements in subdivision (a), the State Fire Marshal may issue or renew a permit to use and possess a Tier II flamethrowing device only if both of the following conditions are met:

(1)The applicant or permitholder has a valid pyrotechnic operator license from the State Fire Marshal pursuant to Section 12578.

(2)The applicant or permitholder has any necessary permits from all applicable fire and law enforcement agencies, if required.

SEC. 5.Section 12761 of the Health and Safety Code is amended to read:
12761.

(a)Any person who uses or possesses any Tier I or Tier II flamethrowing device, and any seller of a Tier I or Tier II flamethrowing device who sells the device to a person in the state, without a valid flamethrowing device permit issued pursuant to this part is guilty of a public offense and, upon conviction, shall be punished by imprisonment in the county jail for a term not to exceed one year, or in the state prison, or by a fine not to exceed ten thousand dollars ($10,000), or by both imprisonment and fine.

(b)Any person who purchased or possessed a Tier II flamethrowing device before January 1, 2019, shall not be held criminally liable pursuant to subdivision (a) after January 1, 2019.

SEC. 4.

 Section 12757 of the Health and Safety Code is amended to read:

12757.
 The State Fire Marshal may issue or renew a permit to use and possess a Tier I flamethrowing device only if all of the following conditions are met:
(a) The applicant or permitholder is not addicted to any controlled substance.
(b) The applicant or permitholder meets the other standards specified in regulations adopted pursuant to Section 12756.

(b)

(c) The applicant or permitholder possesses a current, has a valid certificate of eligibility issued by the Department of Justice pursuant to subdivisions (a) to (c), inclusive, of Section 26710 of the Penal Code.

(c)The applicant or permitholder meets the other standards specified in regulations adopted pursuant to Section 12756.

(d) The applicant or permitholder has a valid pyrotechnic operator license from the State Fire Marshal pursuant to Section 12578.
(e) The applicant or permitholder has any necessary permits from all applicable fire and law enforcement agencies, if required.

SEC. 5.

 Section 12761 of the Health and Safety Code is amended to read:

12761.
 Any person who uses or possesses any a Tier I flamethrowing device without a valid flamethrowing device permit issued by the State Fire Marshal pursuant to this part, and any person who sells a Tier I flamethrowing device to a person who does not possess a permit issued by the State Fire Marshal pursuant to this part, is guilty of a public offense and, upon conviction, shall be punished by imprisonment in the county jail for a term not to exceed one year, or in the state prison, or by a fine not to exceed ten thousand dollars ($10,000), or by both imprisonment and fine.

SEC. 6.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.