KSL+

KSL+: Untangling The Web Of Firework Legality

Jun 24, 2021, 5:56 PM

We’re just a few days away from when Utahns will be able to legally light off fireworks and fire officials are concerned.

“The problem is if you stand up on the hillside and look out over the valley on Fourth of July, it is absolute mayhem across the entire valley with fireworks,” said Unified Fire Chief Dan Petersen. “And if it’s raining, not a problem. But it’s not going to rain this year. It just doesn’t seem like that’s gonna happen.”

There’s been a lot of back and forth here. State lawmakers say their laws give power to the municipalities.

“Well, we have a law. Okay, so the law, current law allows the governor to ban fireworks in unincorporated areas of the state on state lands and on state trust lands,” said Rep. Jim Dunnigan. “And he’s done that even professional shows he’s banned on those areas. He does not have the authority to ban them in municipalities. We left that authority up with a local government.”

City leaders like Sandy councilmember Zach Robinson say the way that the state code is drafted doesn’t let them go far enough, and they need it state level interference.

“You know, there’s appetite for us to do more for our community. Unfortunately, our hands are tied, and we can’t do we can’t do more,” said Robinson. “We’ve basically enacted what regulation we can at a local level.”

And Governor Cox argues he’s done all the legislature will allow.

“I received a legal opinion last night from the attorney general’s office and from my general counsel, that I do not have the authority to implement a statewide ban,” Governor Cox said. “I’m encouraging local communities to put those restrictions in place. And they do have the authority to do that, to some extent. And that depends on how close they are to wildland urban interfaces that, again, the statute is fairly complex. I’ve told the legislature I think it’s a terrible idea not to have additional restrictions this year. They haven’t they haven’t shown any interest in in doing anything more around that. So we are relying on local governments to to put those restrictions in place.”

So what’s really happening? We’ve been working on tangled all the legal webs this week across the combined KSL and Deseret News newsroom. Who has the power to do what and how did we get here?

The Utah Fireworks Act was last updated in 2018 in a bipartisan push to give cities more power over which fireworks they will and won’t allow. Senator Jani Iwamoto and Representative Jim Dunnigan used a bill to shrink the number of days people could light off fireworks in the month of July from 14 days to eight. In other words, four days around each holiday–July 4, and the 24th. They also gave the municipalities more control, allowing them to make maps of where they want to ban fireworks.

Rep. Dunnigan: “And then the city said, you know, the current law lets us ban it in the urban interface. That’s where the hillside or the mountainside comes down to civilization. But we have like in Salt Lake County, for example, the Jordan River. And you know what about that interface? So we said okay, that’s fair. So we put in there that riverwash, a ravine, a trail, you can go on 200 feet on either side of it. And you can ban them.

And you can also say if it’s a historically hazardous area, like a high fire risk, you can ban those. Then Salt Lake City said, “We don’t have the Jordan River that goes through a certain part of our city. But we have a lot of dry grass that are flammable.” So we put that specifically in their dry grass covered areas. So we gave the cities quite a bit more authority. And we said just draw a map so people knows where it’s legal and where it’s not legal. And then the we stipulated all the fireworks sellers, there’s the stands, in the stores, have to post a map, and more prominently displayed the dates and the times of when people can discharge them. And so that was a compromise. We cut the days almost in half. We gave the cities more latitude of where to restrict them. And and that was agreed upon, and that was a legislation that passed three years ago.”

But if they want to ban fireworks across the whole city or county, they have to rely on history. In two of the last five years, they have to have had hazardous conditions in the area before July 1. Even if they can show that, there’s a deadline to get a map drawn up of where they want to ban those fireworks. And that deadline was May 1.

What about an executive order? Governor Cox said last week, the law doesn’t allow him to make a statewide ban. And in a legal analysis done for his office, neither does a state of emergency, allow him to ban fireworks. Ultimately, the law gives no one the power to make a statewide ban. To do so the Utah legislature would need to change the law,

Sen. Iwamoto: “We’re going to go back to the table after. It’s hard because we don’t have a legislative session until January. But we meet after every fire season with stakeholders. And I think that the chiefs and foresters and everyone are working together really hard. And so the enforcement is key to you know. The enforcement is going to be key. They said they’re going to bump up the enforcement all around and people just need to be really careful.”

Senator Todd Weiler spoke to Dave and Dujanovic on KSL NewsRadio to dig deeper into the dynamics at play here when it comes to all these different branches of government.

Debbie Dujanovic: Senator Todd Wyler, why does our governor not have the power to ban fireworks statewide in this drought we’re in?

Sen. Weiler: Well, you know, all facetiousness aside, this country was established because we didn’t like the powers that a king had. I’m not being sarcastic when I say our government was set up on the national and state level to divide power into three branches.The legislature makes the laws and the executive branch, the governor enforces the law. So there is no law in the book that says the governor can ban fireworks. There is a law on the books that says the governor can declare a state of emergency and we all know that he did that. President Trump did that, every other governor did that for COVID. When a state of emergency is declared, it kind of collapses; those three branches, at least the two branches, the legislature, the executive. We give the governor some extraordinary powers to work during a state of emergency. So those were traditionally thought of if we have an earthquake, and everything’s disabled or something like that. We do want one person to be able to make a bunch of decisions to help us out, to get through that disaster. And the real controversy last year was when the state of emergency wasn’t just 30 days, it was 60 days, 90 days. And then it was a year and there was a year and two months. And so the governor does, and he’s been a little bit disingenuous, short of a state of emergency declaration. I don’t think he has the power to to ban fireworks statewide. But he does have the power to declare another state of emergency. And I don’t think that there’s the political will to do that. And I’m glad there’s not because we should not be in a situation where the governor’s you know, willy nilly declaring states of emergency but we do have state and local fire marshals who do have wide discretion. And we’ve also vested in the local city councils and mayors and our of our 249 cities and towns, the power where they can restrict and ban fireworks in sensitive areas.

And of course, those mayors and city councils would often prefer that the state legislature make that decision. So people that want to blast off their fireworks aren’t mad at them. They’re mad. But I’m fairly confident that that’s a decision that should be made on a local level because all 249 cities and towns are not facing the same conditions right now. I can tell you I don’t think there’s support in the Senate. I know there’s not support in the Senate for a statewide ban because we have state and local fire marshals and city councils who were appropriate, already have that authority. And I think the sense and the feeling is is that authority is best exercised on a local level.

Debbie Dujanovic: Did you do a straw vote to figure out that there wasn’t the support to do a statewide ban on the part of lawmakers?

Sen. Weiler: We did not do a straw vote but based on the discussion, it was overwhelmingly obvious that we were comfortable that mayors and city councils could make those decisions, in consultation with their fire marshals.

Chief Dan Petersen, Unified Fire Authority: “Let’s get away from all the laws and all the statutes and everything. Today we’re in a drought. You know, we have a lot of dry grass, we have a lot of dry shrubs, this may be a really good year to just pause on fireworks just this year. Just don’t do it. Now, if for some fluke, it rains heavily on Fourth of July, great, but we don’t see that in the forecast. And all of these little grass, all of this little piece is going to be really dangerous.

I’m worried. I’m really worried. Because the last couple of years, we’ve had some wetness around Fourth of July, and we still have fires. When I came here as the chief in January of  ’17. And in ’17, we had a very ugly fire season related to fireworks. We had two apartment complex fires, we almost lost some homes in Cottonwood Heights. And this season is worse. So the problem is, we might have had 80 fires related to fireworks last year, but only 10 or so of them became anything. This year, if we have the same number of fires, I would imagine 40 of them or 50 of them will get out of control before someone can get it with a garden hose.”

No matter who is in charge of what when it comes down to it firefighters and everyday people will be the ones cleaning up the messes from fireworks in an unprecedented a year of drought.

Chief Dan Petersen, Unified Fire Authority: “I’ve got 120 some people on duty every day. I had no one available for a few hours because we were running non stop calls. Then we had a couple of wet years–this year is not that. So I’m really afraid that we’re going to be completely committed on dumpster fires, on trash fires, on shrub fires across the entire valley and be really having to pare down our responses and not be able to effectively suppress a fire that might be spreading.”

It’s June and we’ve already seen one wildfire destroy one home and force evacuations in enterprise and several other wildfires that have burned across the state.

The Fourth of July and 24th of July celebrate our ancestors sacrifices to give us the freedoms we have today. We can debate who should have the power to ban what were how all day. We can argue over local control versus statewide control, executive control versus legislative. But over the next month, the choice to shoot our own fireworks or leave it to the professionals is up to us. So how are we going to use our freedoms this year?

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KSL+: Untangling The Web Of Firework Legality