Act 43 of 2017 Article XXIV Fireworks

Posted by on Feb 18, 2019 in What's happening in law and at MPL Law Firm. | 0 comments

Act 43 of 2017 Article XXIV Fireworks

Pennsylvania has now changed its fireworks law to clarify categories of what are commonly considered fireworks—namely “display fireworks”, “consumer fireworks”, and “novelty” fireworks.

There is no remarkable change to the law concerning display fireworks and novelty fireworks.  The display fireworks are the large-scale fireworks displays used solely by professional pyrotechnicians.  These will continue to require permits issued by municipalities before any display fireworks can be set off within a municipality.  Also, there is no change in the law regarding things like sparklers and “toy caps”, which are always permitted at all times within Pennsylvania.  In fact, Pennsylvania does not consider these novelty items as fireworks at all.

The biggest change is that the state has now created a category of “consumer fireworks” that prior to passage of the new law would have generally been illegal for Pennsylvania residents to buy or use within Pennsylvania.  The law has now legalized the purchase of these consumer fireworks for all people 18 years of age and older. Further, consumer fireworks may be legally used within Pennsylvania, provided they are set off at least 150 feet from an occupied structure.  Significantly for municipalities, however, the state law gives no clear opportunity for municipalities to regulate the use of consumer fireworks, and their unlawful use will be handled through the police and the regular criminal justice system. We suggest municipalities refer residents to the police for any complaints they might have about possible dangerous or unlawful use of consumer fireworks.  Municipalities may, however, continue to regulate noise and nuisances within their confines, so some indirect regulation of fireworks may be possible under other types of ordinances.

Finally, the new law sets forth requirements for the sale of consumer fireworks, requiring a permit from the Department of Agriculture.  Before anyone may sell consumer fireworks at a location, they must apply for and receive annually a permit from the Department of Agriculture.  The Department of Agriculture also will conduct inspections of the sales locations to determine they are safe and compliant with the law. It would seem prudent for municipal code enforcement officers to ask to see the license from the Department of Agriculture prior to issuing a use and occupancy permit from the municipality.

**UPDATE** Act 43 of 2017 Article XXIV Fireworks

Several large fireworks sellers challenged the constitutionality of Act 43 on multiple grounds in a case called Phantom Fireworks of Easton v. Wolf.  The Commonwealth Court recently ruled on the case, and although the court rejected many of Phantom Fireworks’ arguments, the court did find that the language in the law pertaining to “Temporary Structures” to be unconstitutional.

Act 43, among other things, provided that consumer fireworks sales in temporary structures were governed by the safety standards established by the National Fire Protection Association (NFPA).  The court held that these provisions of Act 43 were unconstitutional because they improperly delegated away from the legislature (and to the NFPA) the authority of regulating the temporary structures.

As a result of this improper delegation, the court struck any language in Act 43 that was impacted by the temporary structures regulations.  Because of the way Act 43 is written, it now appears that selling consumer fireworks may only be permitted in permanent structures, making selling them in tents or other temporary structures to be illegal at all times.  Recall that consumer fireworks are the category of fireworks that for many years had been illegal for Pennsylvania residents to buy, but that Act 43 had now made legal. Other “fireworks” that are not classified as consumer fireworks (like those that had been legal for purchase prior to Act 43) may presumably continue to be able to be sold from tents or temporary structures because Act 43 clearly does not regulate those products.

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