The Walled Lake City Council has voted unanimously to adopt an amendment to the city’s fireworks and display ordinance to align it with a new state law, Public Act (PA) 256 of 2011 (Act), which has sparked some fireworks of a different kind.
The council’s action came on Tuesday, July 17.
The act regulates the purchase, possession, sale and use of certain categories of consumer-grade fireworks. The act further prohibits local governments from enacting or enforcing an ordinance pertaining to the sale, display, storage, transportation or distribution of consumer-grade fireworks. However, the act allows municipalities to enact ordinances regulating the ignition, discharge and use of consumer-grade fireworks, except for regulating the ignition, discharge, and use of consumer-grade fireworks on the day preceding, the day of, or the day after a national holiday.
Therefore, Walled Lake’s amendment to the city’s fireworks ordinance repeals existing provisions inconsistent with the act, and enacts new provisions — essentially forbidding the ignition, discharge and use of consumer-grade fireworks except on the day preceding, the day of, and the day after a national holiday.
Whether the act pre-empts other ordinances of general applicability, such as outdoor sales display or noise ordinances, presents a more challenging legal issue.
“The question becomes (whether) on those days when fireworks are going off, (if we) can use other ordinances like (the one dealing with) disturbing the peace, one of general applicability,” said Vahan Vanerian, the city’s legal counsel. “In this ordinance, it doesn’t matter what noise is causing a breach of peace — it’s a violation.”
According to Vanerian, Michigan Attorney General Bill Schuette’s office issued an opinion on June 12 on the issue. Specifically, the opinion addressed whether PA 256 pre-empts municipal ordinances.
“Since then, the legal opinion has come out that the ordinances are not pre-empting state law,” Vanerian said. “The city can’t say on the (protected) days of shooting off fireworks that you can’t do it at 3 a.m. for example, but that doesn’t mean it can’t use another ordinance of applicability to regulate them.”
Another example of a general applicability ordinance is one requiring permits and inspections for temporary outdoor sales structures. The Attorney General’s Office held PA 256 did not pre-empt the outdoor sales display ordinance because it applies generally to all vendors, does not preclude outdoor sales display but only requires a permit and inspection, and because it does not “expressly refer to the sale of fireworks or any other specific goods or services.”
Consequently, due to a potential conflict with the new state law, adopting a consumer fireworks exception to prohibited display items under the city’s outdoor sales display ordinance has been recommended.