Foster Swift Municipal Law Bulletin
July 2, 2012
As many municipalities know, the revamped Michigan Fireworks Safety Act ("Act") expands the types of fireworks that are legal without a permit, and it limits municipalities' ability to regulate fireworks. However, the Act does not necessarily preempt a municipality's ability to address traditional concerns such as noise and public safety through generally applicable ordinances. The Michigan Attorney General has found that the Act does not override a generally applicable local ordinance regulating temporary vending facilities, including fireworks sales displays. In the situation presented to the Attorney General, a township’s ordinance regulated the use of all shelters, like tents and canopies, used for vending activities. It did not expressly refer to the sale of fireworks or any other specific good or service, but a vendor seeking to sell consumer fireworks in the township would be subject to the ordinance’s permit and fee requirements.
The Attorney General stated that the ordinance had an incidental effect on the sale of regulated fireworks and that the ordinance, therefore, was not preempted by the Act. The incidental effect did not regulate the sale, display, storage, transport, or distribution of fireworks. The Attorney General added that if the Legislature intended to bar municipalities from enforcing or enacting any peddling or temporary structure ordinance or generally applicable ordinance as to fireworks vendors, it could have easily done so. Although the Attorney General's opinion does not have the force of law, it provides persuasive authority for municipalities who wish to enforce ordinances that apply equally to all vendors, including fireworks vendors.
If you encounter any issues involving existing ordinances and the amended Michigan Fireworks Safety Act, please feel contact Laura Garlinghouse of the Foster Swift Municipal Team.