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AGO 1963 No. 34 - July 01, 1963
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John J. O'Connell | 1957-1968 | Attorney General of Washington


CITIES AND TOWNS ‑- FIREWORKS ‑- STATE FIREWORKS LAW ‑- PERMITS ‑- ORDINANCE ‑- AUTHORITY OF CITY TO LIMIT OR RESTRICT RIGHT TO APPLY FOR PERMIT.

A city or town may not by ordinance limit or restrict the issuance of a permit for the manufacture, importation, exportation, possession, sale, use or discharge of fireworks to charitable and public service groups.  The governing authority of the city or town must consider each application for a permit and then exercise its discretion in denying or granting same.

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                                                                     July 1, 1963

Honorable Albert C. Thompson, Jr.
State Senator, 48th District
250 Bellevue Square
Bellevue, Washington

                                                                                                                Cite as:  AGO 63-64 No. 34

Dear Sir:

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

            May a city or town limit, by ordinance, the issuance of a permit for the manufacture, importation, exportation, possession, sale, use or discharge of fireworks to charitable and public service groups?

            We answer your question in the negative.

                                                                     ANALYSIS

            In our opinion of last year (AGO 61-62 No. 145) [[to Bureau of Governmental Research and Services on July 18, 1962]]we stated that 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 chapter 228, Laws of 1961, chapter 70.77 RCW (hereinafter referred to as the state fireworks law).1/

             [[Orig. Op. Page 2]]

            A city or town is granted authority to enact and enforce ordinances by Article XI, § 11, of the State Constitution, which provides as follows:

            "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."

            In our earlier opinion, which we previously referred to, we stated that the test in determining whether an ordinance is in conflict with general laws is whether the ordinance forbids or prohibits that which the statute permits or licenses, or vice versa.  Bellingham v. Schampera, 57 Wn.2d 106, 356 P.2d 292 (1960).  We feel this test is applicable here.  In other words, we must compare the language of the state fireworks law with the language of the ordinance to determine if the ordinance prohibits that which the statute permits.

            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  [[Orig. Op. Page 3]] 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."  (Emphasis supplied.)

            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, of any, as it shall prescribe."

            RCW 70.77.260 allowsany adult person or other group to make application to a local governing body, such as a city or town, for a permit to manufacture, import, export, possess, sell, use or discharge fireworks.  Ordinances limiting the issuance of such permits to charitable and public service groups is, in effect, a limitation upon whom may apply.  It follows, therefore, that the ordinance prohibits that which the statute permits.  Under these circumstances such an ordinance would be void.

            Nor do we feel that such an ordinance could be considered an exercise of discretion pursuant to RCW 70.77.270.  In our prior opinion we pointed out that an absolute prohibition was not an exercise of discretion, but was an abdication of the power of discretion.  Furthermore, we stated that discretion requires a judgment upon the facts and surrounding circumstances of each individual application for a permit.  The Washington supreme court has similarly defined discretion in the case of Merritt School Dist. v. Kimm, 22 Wn.2d 887, 891, 157 P.2d 989 (1945), stating as follows:

             [[Orig. Op. Page 4]]

            "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. . . ."

            The ordinance here however forecloses the exercise of discretion to all but charitable and public service groups.  Although more narrow in scope, it is, in our opinion, just as prohibitive to the exercise of discretion as an ordinance completely prohibiting the manufacture, exportation, importation, possession, sale, use or discharge of fireworks.

            Accordingly, we are of the opinion that cities and towns cannot limit, by ordinance, the issuance of a permit for the manufacture, exportation, importation, possession, sale, use or discharge of fireworks to charitable and public service groups.  Furthermore, we are of the opinion that the governing authority of a city or town must consider each application for such a permit and then exercise its discretion in granting or denying the permit.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

BASIL L. BADLEY
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/In view of the similarity of the subject matter and of the analysis in this opinion, we are enclosing for your information a copy of AGO 61-62 No. 145.

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