STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5488

May 3, 1979

FIREWORKS:

Sale, use and possession of 'cone fountains' and 'cylinder fountains'

WORDS AND PHRASES:

'Cone fountain'; 'cylinder fountain' and 'wheels'

A pyrotechnic device which spins or twirls is a 'wheel' and neither a 'cylinder fountain' nor a 'cone fountain' within the exemption provided for certain fireworks by 1931 PA 328, Sec. 243a(3)(d); therefore, the sale, offer for sale, use or possession of such a pyrotechnic device is prohibited in Michigan.

Colonel Gerald L. Hough

Director

Michigan Department of State Police

713 South Harrison Road

East Lansing, Michigan 48823

You have requested my opinion as to whether the definition of the terms 'cone fountains' and 'cylinder fountains' which appear in the Michigan Penal Code, 1931 PA 328, ch XXXIX, Sec. 243a(3)(d), as last amended by 1978 PA 258, MCLA 750.243a(3)(d); MSA 28.440(3)(d), include pyrotechnic devices which spin or twirl when ignited.

1931 PA 328, ch XXXIX, supra, Sec. 243a(2) provides that '. . . a person, firm, copartnership, or corporation shall not offer for sale, expose for sale, sell at retail, keep with intent to sell at retail, possess, give, furnish, transport, use, explode, or cause to explode . . .' any of an extensive list of specifically-described fireworks.

The Michigan Penal Code, ch XXXIX, Sec. 243a(3), supra, further provides, however, that a permit is not required for certain types of fireworks such as flat paper caps containing not more than .25 of a grain of explosive content per cap, sparklers containing not more than .0125 pounds of burning portion per sparkler, flitter sparklers in paper tubes not exceeding 1/8 inch in diameter and other types of fireworks which are comparatively harmless. By enactment of 1978 PA 258, supra, the Legislature, without benefit of definitions, added 'cone fountains, and cylinder fountains' to the list of fireworks for which a permit need not be obtained.

The fundamental rule of statutory construction is to ascertain and give expression to the intent of the Legislature. All other rules serve as guides to assist in determining this intent. Mason County Civic Research Council v Mason County, 343 Mich 313; 72 NW2d 292 (1956). When ascertained, the intention of the Legislature is controlling and is to be effectuated. Lee v Michigan Employment Security Commission, 346 Mich 171; 78 NW2d 309 (1956); Evans Products Co v Fry, 307 Mich 506; 12 NW2d 448 (1944).

RS 1846, ch I, Sec. 3a, MCLA 8.3a; MSA 2.212(1), states:

Where the language of a statute is of a doubtful meaning, resort may be had to other legislation on the subject matter of the act in seeking the legislative intent. Thorn v Jones, 335 Mich 658; 57 NW2d 40 (1953).

In applying these rules of statutory interpretation, it will be noted that pursuant to the Hazardous Materials Transportation Act, PL 93-633, Title I, Sec. 102, 88 State 2157, the Secretary of Transportation adopted the following definitions of 'cylindrical fountains', 'cone fountains' and 'wheels' in 49 CFR 173.100:

As these definitions were contained in Federal Regulations prior to the enactment of 1978 PA 258, supra, it may be presumed that the Legislature was aware of these definitions and intended them to apply by virtue of the reference in 1931 PA 328, Sec. 243a(3)(g), supra, as added by 1978 PA 258, which states:

It may further be noted that the American Pyrotechnics Association, which is a trade association for the fireworks industry, has distributed a glossary of terms used in connection with fireworks. This glossary, a copy of which is attached, contains two relevant definitions, these being 'fountain' on page 4 and 'wheel' on page 8.

A 'fountain' is defined as:

The word 'wheel' is separately defined as:

A reading of these definitions therefore indicates legislative intent that the phrase 'cone fountains, and cylinder fountains' used in the Michigan fireworks law, Sec. 243a(3)(d) does not include a 'wheel' thereby adopting the definition commonly understood in the industry. Thus, devices which twirl or spin because they are driven by several cylinders of pyrotechnic material or because the fuse is located on the side do not fall within the definition of 'cone fountains' or 'cylinder fountains' and may not be sold, possessed or used without a permit. It may be noted that devices which spin or twirl when ignited may be more hazardous than devices which are stationary, thereby providing a rational basis for banning the former and permitting the latter.

In summary, it is my opinion that a pyrotechnic device which spins or twirls is a 'wheel' and thus is neither a 'cylinder fountain' nor a 'cone fountain' within the meaning of 1931 PA 328, Sec. 243a(3)(d), supra.

Frank J. Kelley

Battle in the Clouds--An aerial noise effect that occurs when a shall carrying a number of consecutively fused salutes bursts. The series of cracks gives the effect of a volley of musket fire. (See salute)

Black Powder--A mixture of potassium nitrate, sulfur and charcoal that is ground together for hours by a heavy grinding wheel. Formerly called gunpowder, its tendency to corrode gun barrels led to its replacement by modern gunpowder, a different chemical mixture not used in fireworks. Black powder was invented before A.D. 1000 and is used in fireworks as a propellant. It does not make a loud noise when ignited unless it is confined. (See flash powder)

Break--An explosion of an aerial shell. A single shell may be manufactured to break as many as ten times, although a shall that breaks four or five times is frequently the highlight of a good small show.

Cherry Bomb--An illegal type of firework, banned in 1966 because it contains so large a quantity of flash powder. It looks like a small red sphere approximately 1" in diameter.

Choke--The hold at the bottom of a skyrocket which allows the gas formed by the ignition of the black powder inside to escape, thus thrusting the rocket skyward.

Chrysanthemum--The symmetrical flower-like pattern seen when a spherical oriental shell bursts and throws jets of color out from a central point.

Classification--The system employed by the U.S. Department of Transportation to rank fireworks, using the amount and type of pyrotechnic composition as the criteria. Class B fireworks contain larger amounts of pyrotechnic material and are used only for licensed public displays. Class C items, containing very limited amounts of composition, are intended for the general public and backyard displays.

Colors--The visual effect created by various chemicals used in the composition of stars. Five different colors are possible: magnesium or aluminum metal produce white, sodium salts produce yellow, strontium nitrate or carbonate make red, barium nitrate or chlorate makes green (or copper salts a bluer green), and charcoal or iron produce orange. Blue is the most difficult color to produce. Ammonium perchlorate combined with copper salt makes the best blue, but the search for a compound which will make a better hue is still going on. (See star)

Comet (or Mine)--A cylinder containing a star and attached to a wooden base. Upon ignition the star is thrust 50-100 feet in the air. It continues to glow as it slowly drops to the ground. (See star)

Firecracker--A little notise-making cylinder up to 1 1/2" in length containing small amounts of pyrotechnic material. Sometimes firecrackers are strung together and fused consecutively.

Fireworks--Any of a variety of devices that produce visual or audible effects through combustion or explosion. The general term 'fireworks' should not be confused with 'firecrackers,' which are a specific type of firework.

Flash Powder--A mixture of potassium chlorate (or potassium perchlorate), sulfur and aluminum developed early in the 20th century. Unsuitable as a propellant, it nevertheless explodes with a loud noise. It is therefore used in salutes and firecrackers. (See black powder)

Fountain--Either a cylinder or a cone containing pyrotechnic composition. A wooden or plastic base is often attached for stability.

Fuse--The wick used to ignite fireworks. The older type, still used in some oriental fireworks, consists of tissue paper with black powder rolled in it. The more advanced type employs a network of woven threads in the place of the paper.

Lady Finger--A small firecracker, about 3/8" long.

Lance--A small tube about 3/8" in diameter and 4" long, filled with colorproducing chemicals. Lances contain the pyrotechnic material in set pieces and are lighted with quickmatch so that they all ignite at virtually the same time and make the picture. (See set piece)

M-80--An illegal type of firework, banned in 1966 because it contains so large a quantity of flash powder. Up to 2" in length, the M-80 is usually a red cylinder with a fuse coming out the side. The name 'M-80' is its military designation.

Mortar--A metal or heavy paper tube, closed at one end and lowered into the ground, used to launch the aerial shells used in public displays. A mortar, which acts like a cannon, must match the size of the shells being used. The black powder ignites behind the shell, and the trapped gas throws the shell up the tube and into the air.

Quickmatch--A special kind of fuse used to light set pieces and other displays that require the simultaneous igniting of many fireworks. It consists of a regular fuse surrounded by a straw or paper tube. This sheath keeps the temperature of the fuse inside so hot that it burns extremely rapidly.

Rocket--A cylinder, frequently topped by a cone to stabilize its flight, attached to a long stick. Upon ignition of the black powder inside, gases stream out the choke on the bottom and force the rocket high into the air. Rockets are among the oldest pyrotechnic devices and were first used as weapons in the Middle East. From there they moved eastward to India and China, where they became popular as display items.

Roman Candle--A 6-12" tube containing alternating layers of compacted black powder and single stars. When stuck in the ground and lighted, stars are shot one at a time out the top of the tube to a height of 12-15 feet.

Salute--A small cylinder filled with flash powder and added to display fireworks as a noise-maker. Salutes are considerably larger than firecrackers and together with stars make most of the effects in aerial fireworks.

Set Piece--A wooden frame set in the ground bearing a picture outlined in lances. When ignited, the lances trace the picture with colored fire. Common subjects are George Washington, Niagara Falls and presidential portraits.

Shell--A cartridge that contains the pyrotechnic composition used in aerial display fireworks. American shells are cylindrical and tend to burst in a random pattern with a lingering color effect. Oriental shells are spherical and burst in a more regular pattern of briefer duration than the American shells. The size of the average shell used in most displays is 3-4" in diameter, but they can be as big as 36".

Silver Salute--An illegal type of firework, banned in 1966 because it contains so large a quantity of flash powder. Approximately 1 1/2" in length, it is a silver cylinder with a fuse coming out the side.

Snake--A type of indoor firework. The pyrotechnic material is pressed into a small pellet. It burns slowly and produces a long trail of ash up to 24"' long. The best snakes are black and made of pitch.

Sparkler--A steel wire commonly about 9" long and partially coated with pyrotechnic composition. The bottom third of the wire serves as a handle and is not coated. When lighted, the sparkler showers sparks to a distance of about 6". The sparks may be white, red, green or gold.

Star--Pellets of compressed color producing chemicals used in many different types of fireworks. Each star leaves a single trail of brilliant color behind it. Hundreds may be employed in an aerial shell, giving the display its dramatic visual effect. Stars and salutes together make almost all the effects in aerial display fireworks.

Torch--A 6-12" tube filled with color composition and ending in a handle. When ignited, streams of color come out the top of the tube.

Weeping Willow--An aerial effect made by adding charcoal to the colorproducing stars. Because the charcoal has a relatively long burning time, the stars burn after they have begun their descent. Their color streams resemble the pendulous branches of a willow. Because of the charcoal content, most willow displays are orange.

Wheel--A device which consists of several cylinders of pyrotechnic material (called drivers) placed end-to-end in a circle on a frame and fused consecutively. When the drivers are ignited, the wheel spins around a central axis and ejects sparks or colors. Sometimes the drivers are so fused that the wheel will change the direction of its spin when the next driver ignites.