Memo On Fireworks 7-21-09

Withered Burns & Persin, LLP Memorandum To:

Eric

From: Tom CC: Date: 7-21-09 RE:

Fireworks

IC 22-11-14-6(d) states that: A person who ignites, discharges, or uses consumer fireworks: (1) after 11 p.m. except on a holiday (as defined in IC 1-1-9-1(a)) or December 31, on which dates consumer fireworks may not be ignited, discharged, or used after midnight; or (2) before 9 a.m.; commits a Class C infraction. However, if a person recklessly, knowingly, or intentionally takes an action described in this subsection within five (5) years after the person previously took an action described in this subsection, whether or not there has been a judgment that the person committed an infraction in taking the previous action, the person commits a Class C misdemeanor. I.C. 1-1-9-1 says: (a) The following are legal holidays within the state of Indiana for all purposes: New Year's Day, January 1. Martin Luther King, Jr.'s Birthday, the third Monday in January. Abraham Lincoln's Birthday, February 12. George Washington's Birthday, the third Monday in February. Good Friday, a movable feast day.

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Memorial Day, the last Monday in May. Independence Day, July 4. Labor Day, the first Monday in September. Columbus Day, the second Monday in October. Election Day, the day of any general, municipal, or primary election. Veterans Day, November 11. Thanksgiving Day, the fourth Thursday in November. Christmas Day, December 25. Sunday, the first day of the week. (b) When any of these holidays, other than Sunday, comes on Sunday, the following Monday shall be the legal holiday. When any of these holidays comes on Saturday, the preceding Friday shall be the legal holiday. Taking the two statutes together, state law makes it unlawful for a person to discharge consumer fireworks after 11 p.m. (except on a holiday, when it is midnight) or before 9 a.m. Persons violating the law are subject to a civil penalty in the form of an infraction. Repeat violators that knowingly, intentionally, or recklessly violate this law are subject to a criminal penalty – a C Misdemeanor. But then the Indiana Code expressly allows for counties and towns to make their own rules. I.C. 22-11-14-10.5 says: (b) Notwithstanding any other provision of this chapter: (1) a county may adopt an ordinance concerning the use of consumer fireworks in the unincorporated areas of the county; and (2) a municipality may adopt an ordinance concerning the use of consumer fireworks within the corporate limits of the municipality. (c) An ordinance adopted under this section: (1) may limit the use of consumer fireworks in the county or municipality; (2) may not be more lenient than a rule adopted by a state agency concerning the use of fireworks; and (3) may not limit the use of consumer fireworks: (A) between the hours of 5:00 p.m. and two (2) hours after sunset on June 29, June 30, July 1, July 2, July 3, July 5, July 6, July 7, July 8, and July 9; (B) between the hours of 10:00 a.m. and 12:00 midnight on July 4; and

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(C) between the hours of 10:00 a.m. on December 31 and 1:00 a.m. on January 1. (emphasis added). This statute clearly sets the limits for local ordinances. Actually, it sets a floor – telling local governments it is free to act but it cannot limit fireworks usage at certain times. So long as an ordinance observes the statutorily-created “floor” and does not ban fireworks usage on protected days, the ordinance is not infirm. Currently, the West Lafayette City Code says in relevant part that: (c) Use or discharge of consumer fireworks prohibited except on certain dates and times. Consumer fireworks may only be used or discharged within the City of West Lafayette, Indiana entirely within private property with the consent of the owner or lessee of that property on the following dates and times … : (1) Between the hours of 5:00 p.m. and two (2) hours after sunset on June 29, June 30, July 1, July 2, July 3, July 5, July 6, July 7, July 8, and July 9; (2) Between the hours of 10:00 a.m. and 12:00 midnight on July 4; (3) Between the hours of 10:00 a.m. on December 31 and 1:00 a.m. on January 1; and (4) Between the hours of 5:00 p.m. and two hours after sunset on January 1. As you can see, the City’s ordinance tracks the statute closely. The City, of course, cannot contravene the statute by shortening the period in which fireworks may be used or discharged below the “floor” established by statute.

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