The City Attorney of San Bernardino asked the Attorney General for an opinion on whether the city can enact an ordinance making it a misdemeanor to sell, offer for sale, use, discharge, possess, store, or transport any fireworks within the city that are not “exempt” or “safe and sane” fireworks as defined by law. The City Attorney further asked if the city could impose an administrative fine of up to $1,000 per violation.
In Opinion 07-503, the Attorney General opined that state law plainly allows a city to enact an ordinance prohibiting the sale, use and discharge of fireworks. The Attorney General further determined that the city may enact an ordinance that regulates, but does not totally ban, the offer for sale, possession, storage and transportation of fireworks. Finally, the Attorney General concluded that the city may impose a fine of up to $1,000 per violation.
Attorney General Opinion
The question before the Attorney General is whether such a city ordinance would be preempted by state law. The State Fireworks Law, found in Health and Safety Code sections 12500-12728, specifically states that the sale or manufacture of fireworks requires “a license from the state and a permit from the city or local government.” Therefore, the Attorney General said it is clear that the law allows for some degree of local regulation to supplement the state law.
However, the state law addresses the different activities listed in this question in two different ways, so the answer requires two parts: one addressing the “sale, use or discharge of fireworks,” and a second part addressing the “offer for sale, possession, storage, and transportation of fireworks.”
Regarding the first group of activities, the plain language of the state law answers the question. It stipulates that nothing within it authorizes the “sale, use, or discharge” of fireworks in any city or county which has prohibited them. Therefore, it is clear that the city may enact an ordinance banning the “sale, use or discharge” of fireworks. But the state law does not specifically address the second group of activities, the “offer for sale, possession, storage and transportation” of fireworks, the attorney general noted.
Since the state law expressly authorizes cities and counties to issue permits for a variety of fireworks activities, it is appropriate for the city to adopt regulations that provide definite and uniform standards for the issuance of those permits, the Attorney General opined. Therefore it is permissible for the city to enact an ordinance that at least regulates those activities in some fashion.
However, the Attorney General pointed out that the Legislature specifically disclaimed preemption with respect to “sale, use and discharge,” and did not with the “offer for sale, possession, storage and transportation.” Consequently, the Attorney General opined “an outright ban on an activity would not be valid where, as here, state law calls for shared control of that activity by means of state licenses and local permits.” The Attorney General concluded it is permissible for the city to regulate, but not totally ban, the second group of activities: the “offer for sale, possession, storage and transportation of fireworks.”
On the question of fines, several provisions of the state law expressly acknowledge that a local jurisdiction may impose administrative fines for violations of its fireworks ordinance. Further, a fine of $1,000 is typically the maximum fine authorized as punishment for a misdemeanor. The Attorney General determined it would be reasonable for the city to impose an administrative fine of up to $1,000 for each violation of its fireworks ordinance.
The Attorney General concluded that the city may enact an ordinance making it unlawful and a misdemeanor for a person to sell, use or discharge any fireworks. It may also regulate the offer for sale, possession, storage, and transportation of fireworks, but may not enact a total ban on those activities. Finally, the city may impose a fine of up to $1,000 per violation.
Questions
If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.
Jeffrey L. Massey | 916.321.4500