LEGAL Q&A: The Rockets' Red Glare
The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney.
July 4th will see the brilliant blaze of fireworks light up municipal skies across New Hampshire. Crowds will gather to watch starry sparkles punctuate the night sky in remembrance of the Declaration that created our nation and set into motion the events that resulted in New Hampshire becoming the state that made us a nation.
While fireworks will play an important part of the big celebrations throughout our state, it’s important to remember that municipal officials have a responsibility to ensure that they are being used in a safe and responsible manner. So, let’s talk about municipal regulation of fireworks.
Q. Fireworks can be extremely dangerous and cause thousands of injuries every year; can our municipality simply prohibit them?
A. Yes. Municipalities have the option to prohibit the issuance of permits or licenses for the sale and/or display of fireworks as defined in RSA 160-B:1. RSA 160-B:10. Municipalities may also prohibit the sale, display, or possession of “permissible fireworks” as defined by RSA 160-C:2 within their borders. RSA 160-C:6. In both cases, the decision to enact a prohibition may be made by either the legislative body or the governing body. Note also that, if the municipality has voted to prohibit the issuance of permits or licenses for the sale and/or display of fireworks under RSA 160-B prior to March 1, 1992, or to prohibit the display of “permissible fireworks” under RSA 160-C before January 21, 2000, the law specifically states that the prohibition remains in effect unless or until action is taken to lift the prohibition.
Q. It seems like there are different definitions for “fireworks” under RSA 160-B and “permissible fireworks” under RSA 160-C. What’s the difference?
A. “Fireworks” as defined by RSA 160-B is a broad category comprising of every item listed under the definition of “firework” under 27 C.F.R. § 555.11. That definition is: “Any composition or device designed to produce a visible or an audible effect by combustion, deflagration, or detonation, and which meets the definition of “consumer fireworks” or “display fireworks” as defined by this section.” “Consumer” and “display” fireworks are divided by the amount of explosive materials with “consumer fireworks” containing less, often significantly less, explosive material than “display fireworks.”
“Permissible fireworks” defined by RSA 160-C:1, V includes “consumer fireworks” as defined by 27 C.F.R. § 555.11, “except for those items that are prohibited pursuant to RSA 160-B:16.” Those prohibited items include only “class “C” sparklers or those sparklers consisting of a wire or stick which contain chlorates or perchlorates is prohibited.”
Q. What is the definition of “display fireworks”?
A. 27 C.F.R. § 555.11, which is incorporated by reference in RSA 160-B and C, defines “display fireworks” as: “[l]arge fireworks designed primarily to produce visible or audible effects by combustion, deflagration, or detonation. This term includes, but is not limited to, salutes containing more than 2 grains (130 mg) of explosive materials, aerial shells containing more than 40 grams of pyrotechnic compositions, and other display pieces which exceed the limits of explosive materials for classification as “consumer fireworks.” Display fireworks are classified as fireworks UN0333, UN0334 or UN0335 by the U.S. Department of Transportation at 49 CFR 172.101. This term also includes fused setpieces containing components which together exceed 50 mg of salute powder.”
Due to the size, and potential for injury, this “Display Fireworks” require state and local licensing for sale, possession or display (defined as use, activation, ignition, firing of a firework, RSA 160-B:1, V).
Q. What is the definition of “consumer fireworks”?
A. 27 C.F.R. § 555.11, which is incorporated by reference in RSA 160-B and C, defines “consumer fireworks” are Any small firework device designed to produce visible effects by combustion and which must comply with the construction, chemical composition, and labeling regulations of the U.S. Consumer Product Safety Commission, as set forth in title 16, Code of Federal Regulations, parts 1500 and 1507. Some small devices designed to produce audible effects are included, such as whistling devices, ground devices containing 50 mg or less of explosive materials, and aerial devices containing 130 mg or less of explosive materials. Consumer fireworks are classified as fireworks UN0336, and UN0337 by the U.S. Department of Transportation at 49 CFR 172.101. This term does not include fused setpieces containing components which together exceed 50 mg of salute powder.
Q. If a municipality has no regulations regarding fireworks, does that mean anyone in that municipality can use any type of fireworks?
A. No. RSA 160-C:11 states that “a person who is 21 years of age or older may possess permissible fireworks except in a municipality which has voted to prohibit possession pursuant to RSA 160-C:6.” In other words, only those 21 years of age or older may possess fireworks and those fireworks can only be “permissible fireworks.”
“Permissible Fireworks” may be displayed on private property with the written consent of the owner of the property or in the owner’s presence. Display or possession of these “permissible fireworks” does not require state or local licenses but may not be displayed or possessed in municipalities which have prohibited the possession or display of fireworks. Any person who violates this provision shall be guilty of a violation if a natural person, or guilty of a class B misdemeanor if any other person. RSA 160-C:11. A violation is a non-criminal offense punishable by up to a $1,000 fine plus penalty assessment while a class B misdemeanor is a criminal offense punishable by up to a $1,200 fine plus penalty assessment.
Q. If an organization wants to put on a fireworks display in our town, and we don’t have an ordinance prohibiting it, is there any way to regulate it?
A. Yes. No person can display fireworks other than “permissible fireworks” without first obtaining a municipal permit pursuant to RSA 160-B:3, I(b). “The chief of police, licensing board, or governing body of the municipality, after an inspection has been conducted by the fire chief, may issue a permit to display fireworks. The permit shall specify the date on which the display is to be conducted and any other conditions that may be imposed.” RSA 160-B:7, III. The fire chief must be satisfied that the display will not be hazardous to property or endanger any person. RSA 160-B:7, IV. The application for a display permit must be submitted at least 15 days in advance of the date of the display and the municipality may charge a reasonable fee for a permit to display fireworks. RSA 160-B:7, V. In addition to the municipal permit, a person must also obtain a certificate of competence issued by the division of state police pursuant to RSA 158:9-f.
Q. What happens if a display permit is issued, but conditions change such that the fire chief feels that a fire hazard exists? Do we have to allow the display to go on as scheduled?
A. No. If the fire chief decides that conditions have changed such that a fire hazard now exists, he or she can revoke the permit pursuant to RSA 160-B:7.
Q. Why have an ordinance prohibiting fireworks? Can’t we just deny all permits submitted to us in order to regulate displays of fireworks?
A. The only way to prohibit all fireworks – not just “display fireworks” – is to have an ordinance. Without an ordinance, anyone over 21 can stage a fireworks display on private property with the permission of the landowner using only “permissible fireworks” and there’s really very little the municipality can do about it.
In addition, attempting to regulate larger displays of fireworks by denying every application for a permit is likely impermissible under state law. If neither the legislative body nor the governing body has voted to prohibit fireworks, then it is reasonable to conclude that the law requires that the municipality must accept the application and review the application based on the standards set out in the statute alone. Fair application of those standards and only those standards are what should control the issuance of permits in the absence of an ordinance.
Q. A business selling fireworks wants to locate in our town. What should we ask for?
A. In order to sell fireworks, a person must apply to the municipality for a permit (but may only apply for a permit in a municipality which has not prohibited their sale). RSA 160-B:6, RSA 160-C:3. The licensing board of the municipality or, if none exists, the governing body may issue a permit to sell display and consumer fireworks “provided the person who applies has a valid permit for the sale of fireworks issued pursuant to Title 18 of the United States Code.” No permit shall be issued by the governing body without prior approval of the chief of police and fire chief, if any, of the municipality. Further, a license to sell fireworks must also be obtained from the state and any local zoning regulations governing this type of business must also be observed.
Natch Greyes is Municipal Services Counsel with the New Hampshire Municipal Association. He may be contacted at 603.224.7447 or at firstname.lastname@example.org.