Municipal Regulation of Fireworks

By Kimberly A. Hallquist, Esq

In the minds of many Americans, fireworks are an integral, and very familiar, part of community-wide celebrations. At the stroke of midnight on January 1, 2000, spectacular fireworks displays were set off around the world. Many of us fondly recall as children being taken by our parents to local fireworks shows that started just after dusk on the Fourth of July—a much anticipated summer event. Sporting events, from regular season baseball games to the opening ceremonies of the Olympic Games, often employ fireworks displays as a way to excite the spectators. Fireworks shows are awe inspiring, and, although not uniquely American (historians believe that the explosive ingredient in fireworks was invented in China about A.D. 1000) certainly bring out strong feelings of patriotism.

While fireworks play an important part of big celebrations throughout our country, it is important to consider that they can cause injury and even death. In the most recent Fireworks Annual Report, the U.S. Consumer Products Safety Council reported that there were 11 deaths and an estimated 9,200 injuries associated with fireworks during 2006. The majority of injuries occur during the weeks before and after the Fourth of July. Children under 15 account for 36 percent of the fireworks-related injuries.

Q. Okay, fireworks can be dangerous; can we simply prohibit them in our municipality?
A.
Yes. Municipalities have the option under state law to prohibit the issuance of permits or licenses for the sale and display of fireworks. RSA 160-B:10. Municipalities may also vote to prohibit the sale, display or possession of “permissible fireworks" within their borders. RSA 160-C:6. These decisions may be made by a vote of the legislative body (town meeting) or the governing body (board of selectmen). If the municipality has voted to prohibit the issuance of permits or licenses for the sale and display of fireworks prior to March 1, 1992, or to prohibit the display of “permissible fireworks" before January 21, 2000, the law states that the prohibition remains in effect until subsequent action is taken to change that. RSA 160-B:10; RSA 160-C:6.

Q. What are “permissible fireworks"?
A.
RSA 160-C:1, V defines permissible fireworks as four specific types of fireworks and the items contained on the list of permissible fireworks as established by the Commissioner of the Department of Safety. The list contains more than 2,000 items and can be viewed online at the Department of Safety Web site at www.nh.gov/safety. Permissible fireworks may be possessed and “displayed" (defined as use, activation, ignition, firing of a firework, RSA 160-B:1, V) without a permit, unless a municipality has voted to prohibit these fireworks within its borders. However a state and local permit is required to sell all types of fireworks.

Q. If a municipality has no regulations regarding fireworks, does that mean anyone in that municipality can use any type of fireworks?
A.
No. Only those 21 years of age or older may possess “permissible fireworks" as defined by state statute (noted previously). A person who is 21 years or older may display these types of fireworks on private property with the written consent of the owner of the property or in the owner’s presence. Display or possession of “permissible fireworks" does not require state or local licenses. Again, this is only applicable in municipalities which have not 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.

Q. What is meant by “display fireworks"?
A.
Formerly known as class B special fireworks, RSA 160-B:1, X and RSA 160-C:1, III define display fireworks as they are defined by federal regulations: large fireworks designed primarily to produce visible or audio effects by combustion, deflagration or detonation. The term includes, but is not limited to, salutes containing more than two 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." 27 C.F.R. section 555.11. Due to the size, and potential for injury, this class of fireworks requires 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 are “consumer fireworks"?
A.
Formerly known as class C common fireworks, RSA 160-B:1, IX and RSA 160-C:1, II define consumer fireworks as they are defined by federal regulations: any small firework device 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. 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. 27 C.F.R. section 555.11.

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. RSA 160-B:3, I(b). The chief of police, licensing board or governing body, after an inspection has been conducted by the fire chief, may issue a permit to display fireworks. The permit must specify the date on which the display is to be conducted and any other conditions that may be imposed. The fire chief must be satisfied that the display will not be hazardous to property or endanger any person. The application for a display permit must be submitted at least 15 days in advance of the date of the display. The municipality may charge a reasonable fee for a permit to display fireworks. 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, in this case, the fire chief can revoke the permit. RSA 160-B:7.

Q. Why have an ordinance prohibiting fireworks? Can’t we just deny all permits submitted to us? Doesn’t that accomplish the same thing?
A.
No, not really. First, since no permits are needed for permissible fireworks, so long as the person is 21 years of age or older, and has the permission of the property owner, no further approval from the town is needed. Second, if the governing body or legislative body has not voted to prohibit fireworks, 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.

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. RSA 160-B:6, RSA 160-C:3. 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. After the person obtains the local permit, the person will then need to apply for a state license. Consideration of a permit to sell fireworks is only applicable in municipalities that have not prohibited them by a vote of the governing body or legislative body as described above. And, as a land use issue, local zoning regulations must also be observed.

Q. So what does all this mean?
A.
The state regulates the types of fireworks that may be sold and displayed within this state and, through permitting, regulates who may sell and display fireworks. Within these parameters, municipalities may choose to prohibit the sale and display of fireworks within their borders. Even when there are no local prohibitions, municipalities, through the governing body, police chief and fire chief, will be involved in fireworks issues when applications for permits for the sale and display of fireworks are requested.

Q. Where can I get more information?
A.
The State Department of Safety, Division of Fire Safety Web site, www.nh.gov/safety, contains links to the laws and administrative rules concerning fireworks, and other helpful information. RSA chapter 160-B, fireworks, and RSA chapter 160-C, permissible fireworks, along with agency administrative rules Saf-C 2600: Display, Consumer, and Permissible Fireworks and Saf-C 5000 Display Fireworks, contain the state laws and regulations pertaining to fireworks.