Fireworks Regulation at the Local Level
"It [Independence Day] ought to be solemnized with Pomp and Parade, with Shews, Games, Sports, Guns, Bells, Bonfires and Illuminations from one End of this Continent to the other from this Time forward forever more."
- Letter from John Adams to Abigail Adams, July 3, 1776
As we have noted in previous VLCT News articles, Vermont’s fireworks laws are confusing. This led to many questions remaining unanswered and muddled for years, including what types of fireworks were legal for public use, and what regulations could a municipality impose on firework sale and use?
A recent Vermont Supreme Court case finally clarifies what firework use is legal and what municipal regulation is authorized. The case is Green Mountain Fireworks, LLC v. Town of Colchester, 2020 VT 64, and the conclusion is that it is illegal – regardless of any local authorization – to sell, possess, or use consumer fireworks.1 Consumer fireworks are any retail fireworks sold to the general public for private use, as opposed to fireworks that are sold and used for an authorized and supervised public display. In addition, the Court in the Green Mountain case also reaffirmed that, while municipalities can’t regulate consumer fireworks (because of the previously mentioned ruling that it is illegal to sell, possess, and use them), they can regulate the sale and use of fireworks for supervised public displays.
As defined by the law, fireworks means “any combustible or explosive composition, or any substance or combination of substances, or article prepared for the purpose of producing a visible or an audible effect by combustion, explosion, deflagration or detonation, including blank cartridges, toy pistols, toy cannons, toy canes, or toy guns in which explosives are used, balloons that are propelled by explosives, firecrackers, torpedoes, sky rockets, Roman candles, cherry bombs, or other fireworks of like construction and any fireworks containing any explosive or flammable compound, or any tablets or other device containing any explosive substance . . ..”2
How Can Municipalities Regulate Public Display Fireworks?
There are two main ways that municipalities may regulate fireworks: through sellers and through users. First, municipalities have authority to require a permit for any person selling fireworks for supervised public displays. 20 V.S.A. § 3132(a)(1). Second, any person wishing to purchase, possess, and use fireworks for a public display must obtain approval (a permit) from the municipality by submitting a request in writing, at least 15 days before the date of the display, to the municipal fire chief, or to the selectboard in those municipalities without a fire chief. The permit must then be approved by the respective authority. 20 V.S.A. § 3132(d).
Any permitted public display of fireworks must be handled by a “competent operator” who is “approved by the chiefs of police and fire departments of the municipality in which the display is to be held.” 20 V.S.A. § 3132(c). What is the legal definition of a “competent operator?” Unfortunately, there is none. Therefore, it will be up to the chiefs, or selectboard, to make this determination. And presumably – unless the permittee voluntarily admits to losing a finger setting off a Roman candle – the basis for making this determination rests in the permittee’s description of the display. A permissible display, the law demands, “shall be of a character, and so located, discharged or fired as, in the opinion of the chief of the fire department, or in a municipality with no fire department, the selectboard, after proper inspection, shall not be hazardous to property or endanger any person or persons.” 20 V.S.A. § 3132(c). The law then apparently puts the focus of issuing a permit not solely upon the competence of the operator, but rather on the totality of the circumstances of the display itself, focusing on whether it is likely that anyone may get hurt or property may be damaged. In doing so, however, the law does impose a duty of “proper inspection” upon the municipal authority that grants a permit. Once a public display permit is issued, it should serve to put emergency services personnel on notice if a call is received.
The Court in Green Mountain noted that the criteria and bounds within which a municipality should operate when reviewing fireworks permits is muddled, particularly when evaluating whether to issue permits to sell fireworks. It stated that “[t]he statute does not plainly set out the scope of the permit or what standards apply in evaluating a permit application” and “emphasize[d] that the lack of clarity in this statute is detrimental to both fireworks dealers and municipalities, and urge[d] the Legislature to remedy the lack of clarity and standards in the statute.” Despite the lack of direction, the Municipal Assistance Center recommends that municipalities establish a process for determining whether to issue permits to sell fireworks. At a bare minimum, a permit evaluation should consist of a process that affords an applicant the opportunity to present evidence as to why their permit should be granted, a fair and uniform method of evaluating permits, and an avenue for the applicant to appeal the decision.
Violating the state’s fireworks law by any party constitutes a misdemeanor subject to a fine of not more than $100 for each violation, or imprisonment for not more than 30 days, or both. 20 V.S.A. § 3135(1).
The Fire Safety Division of the Vermont Department of Public Safety has created a Public Fireworks Display Checklist and a Sample Municipal Fireworks Display Permit, both of which are available at http://firesafety.vermont.gov/pubed/media/sparklers.
The town may also consider adopting a local nuisance or noise ordinance regulating public disturbances. Otherwise, there is a self-executing “noise in the nighttime” law which states that “(a) person who, between sunset and sunrise, disturbs and breaks the public peace by firing guns, blowing horns, or other unnecessary and offensive noise shall be fined not more than $ 50.00.” 13 V.S.A. § 1022.
Editor’s note: This article combines and clarifies previous fireworks articles published in the July 2019 and November-December 2020 issues of VLCT News.