CITIES AND TOWNS ‑- FIREWORKS ‑- STATE FIREWORKS LAW ‑- PERMITS ‑- AUTHORITY OF CITY TO PROHIBIT FIREWORKS BY ORDINANCE

CITIES AND TOWNS ‑- FIREWORKS ‑- STATE FIREWORKS LAW ‑- PERMITS ‑- AUTHORITY OF CITY TO PROHIBIT FIREWORKS BY ORDINANCE.

A city or town does not have the authority to prohibit by ordinance the manufacture, importation, exportation, possession, sale, use or discharge of fireworks within its corporate limits but may regulate such activities under provisions of the state fireworks law (chapter 228, Laws of 1961, chapter 70.77 RCW).

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                                                                    July 18, 1962

Honorable Donald H. Webster
Director, Bureau of Governmental
Research and Services
266 J. Allen Smith Hall
University of Washington
Seattle 5, Washington

                                                                                                              Cite as:  AGO 61-62 No. 145

Dear Sir:

            By letter previously acknowledged you requested the advice of this office on two questions which we paraphrase as follows:

            1. May a city or town prohibit, by ordinance, the manufacture, importation, exportation, possession, sale, use, or discharge of fireworks within its corporate limits in view of the provisions of the state fireworks law (chapter 228, Laws of 1961, chapter 70.77 RCW)?

            2. If the answer to question one is in the affirmative, would such a prohibitory ordinance enacted prior to the effective date of the state fireworks law still be in force or would a new prohibitory ordinance be necessary?

            We answer your first question in the negative, thereby rendering it unnecessary to answer your second question.

                                                                     ANALYSIS

            Article XI, § 11, of the Washington State Constitution provides:

            "Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws."

             [[Orig. Op. Page 2]]

            In determining whether an ordinance is in conflict with general laws, the test is whether the ordinance forbids and prohibits that which the statute permits or licenses, or vice versa.  Bellingham v. Schampera, 57 Wn. (2d) 106, 356 P. (2d) 292 (1960).

            It therefore becomes necessary to look to the language of chapter 228, Laws of 1961, now codified as chapter 70.77 RCW, to determine whether or not an ordinance of a city or town which prohibits the manufacture, importation, exportation, possession, sale, use, or discharge of fireworks would prohibit that which the statute permits.

            Any person desiring to engage in the manufacture, importation, exportation, sale, use and transportation of fireworks in this state must apply for and secure a license from the state fire marshal.  See, RCW 70.77.315 and RCW 70.77.330.  However, possession of this license does not, by itself, authorize a person to engage in any of the acts enumerated above unless that person has applied for and secured a permit from the local public agency having jurisdiction.  RCW 70.77.255 provides:

            "No person, without securing a permit, shall do any of the following:

            "(1) Manufacture, import, export, possess, or sell any fireworks at wholesale or retail for any use, including agricultural purposes or wild life control;

            "(2) Discharge dangerous fireworks at any place;

            "(3) Make a public display of fireworks;

            "(4) Transport fireworks, except as a public carrier."

            RCW 70.77.260 provides:

            "Any adult person or other group desiring to do any act mentioned in RCW 70.77.255 shall first make written application for a permit to the chief of the fire department or the chief fire prevention officer of the city or county, or to such other person as may be designated by the governing body of the city or county, or in the event there be no such officer or person appointed within the area, to the state fire marshal or his appropriate deputy.  Applications for permits for public display of fireworks shall be made in writing at least ten days in advance of the proposed display."

             [[Orig. Op. Page 3]]

            RCW 70.77.265 provides:

            "It shall be the duty of the officer to whom the application for a permit was made to make an investigation and submit a report of his findings and his recommendation for or against the issuance of the permit, together with his reasons therefor, to the governing body of the city or county."

            RCW 70.77.270 provides:

            "The governing body shall have power in its discretion to grant or deny the application, subject to such reasonable conditions, if any, as it shall prescribe."

            It seems inescapable to us that an ordinance of the type to which your first question refers would run counter to the language of the above quoted statutes and would thereby render them nugatory.  The statutes prescribe the procedure to be followed by both the applicant for a permit and the governing body having authority to grant or deny the permit.  Certainly the prohibitory ordinance would have the effect of preventing a person from doing that which the statute permits.  In addition, such an ordinance would not, in our opinion, be the exercise of the discretion contemplated by RCW 70.77.270.  More properly, we believe it would be the abdication of such power.  As our court stated inMerritt School Dist. v. Kimm, 22 Wn. (2d) 887, 891, 157 P. (2d) 989 (1945):

            "Discretion implies knowledge and prudence and that discernment which enables a person to judge critically of what is correct and proper.  It is judgment directed by circumspection. . . ."

            It is difficult to understand how such a prohibitory ordinance could be said to be the exercise of discretion based upon the facts surrounding each application for a permit.

            Therefore, we are of the opinion that a city or town cannot prohibit, by ordinance, the manufacture, importation, exportation, possession, sale, use, or discharge of fireworks within the corporate limits, except pursuant to the provisions of chapter 70.77 RCW (state fireworks law).

            The conclusion we have reached is fortified when consideration is given to the fact that the legislature by the enactment of the 1961 law repealed RCW 70.77.100.  This statuteformerly permitted a city or county to prohibit by ordinance the manufacture, sale, use, or discharge of fireworks within the limits of such city or county.  Since  [[Orig. Op. Page 4]] the new law contains no similar provision it must be concluded that such authority does not now exist.  1 Sutherland, Statutory Construction, § 2023.

            We are not unmindful of the fact that RCW 35.22.280 provides:

            "Any city of the first class shall have power‑-

            ". . .

            "(23) To provide for the prevention and extinguishment of fires, and to regulate or prohibit the transportation, keeping, or storage of all combustible or explosive materials within its corporate limits, and to regulate and restrain the use of fireworks;" (Emphasis supplied.)

            However, we are of the opinion that the language emphasized above must now be read in light of chapter 70.77 RCW (state fireworks law).

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

EARL E. YATES
Assistant Attorney General