July 2, 2014 – Independence Day is often a time of celebration in the form of fireworks, which present legal issues to ponder as this year’s activities commence.
Under state law, fireworks are illegal to possess and use without a valid permit, and local governments may impose stricter firework ordinances. For instance, the city of Milwaukee bans the use of fireworks, and there is no process for obtaining a permit.
State law allows local police to impose fines up to $1,000 for possession or use without a permit, extending to parents who let their kids use fireworks.1
There’s a good chance local law enforcement isn’t actively seeking to bust people lighting small fireworks without permits, according to the district attorney in Ashland County. But if a threat of citation is not enough, other obvious downfalls exist.
Personal injury is one downfall. Property damage is another.
Brookfield attorney Frank Pasternak of Pasternak & Zirgibel S.C. has dealt with firework cases in the past. “The suits usually come up as the result of professional error,” said Pasternak, noting that public displays can be considered ultrahazardous activities.
In 1998, for instance, a plaintiff sued the Village of Oconomowoc Lake, the Oconomowoc Lake Club, and the Bartolotta Fireworks Company after a firework launch tipped over and discharged an errant shell. The jury awarded the plaintiff $2.8 million.
Aside from accidents at public displays, fireworks cause widespread injury and property damage. In 2011, fireworks caused almost 10,000 injuries and 18,000 fires in the U.S., according to a report by the National Association of Fire Prevention.
Naturally, lawsuits and insurance claims may follow these types of accidents.
Homeowner’s or vehicle insurance policies may not cover the losses that result from the use of fireworks, especially use without a permit, depending on the insurance policy.
And since Wisconsin is home to the great north woods, it’s also worth noting that someone who is responsible for starting a forest or wild fire through fireworks will be responsible for the costs to extinguish the fire, under state statute.
Heading to a state park? Fireworks are prohibited in Wisconsin’s more than 60 state parks and forests, which cover millions of acres in Wisconsin. Individuals who light fireworks within the more than 1.5 million acres of Chequamegon-Nicolet National Forest, which covers 11 Wisconsin counties, face fines up to $5,000 or jail time.2
Possession, Use and Sales
“I think we all realize that there is a significant amount of use of fireworks without a permit,” said Kelly McKnight, district attorney for Ashland County in northern Wisconsin.
“Perhaps law enforcement simply has bigger fish to fry on July 4 than illegal firecrackers and bottle rockets,” McKnight said. “I’m not trying to minimize the illegality of fireworks without a permit. I just know from experience that July 4 and the surrounding days can be a pretty busy time for law enforcement, and I doubt illegal fireworks top the list.”
Whether a municipality actively enforces firework laws may vary by municipality, but the law is clear on the types of fireworks that cannot be possessed or used without a permit.
Under section 167.10, certain July 4 novelties are not considered “fireworks” and anyone can use or possess them. No permit is required.
Those objects include “sparklers” that don’t exceed 36 inches in length, smoke bombs, confetti sprayers, “novelty devices that spin or move on the ground,” and a few other objects, such as “caps” and “snaps” with minimal amounts of explosive mixture.
Under Wis. Stat. section 167.10(5), municipalities may enact ordinances that outlaw novelties, including sparklers, that aren’t “fireworks” under state law. Thus, just because something isn’t regulated by state law, it could be locally outlawed by ordinance.
Other objects that are manufactured, processed, or packaged for exploding, emitting sparks or combustion, and do not have another common use, are considered “fireworks” and are illegal to possess or use without a permit under section 167.10(3).
In general, a device is illegal, without a permit, if it explodes or is propelled into the air. Thus, common fireworks such as bottle rockets, roman candles, firecrackers, cherry bombs, spinners, and sky fliers are prohibited by state law if no permit is obtained.
Permits specify the date that fireworks may be purchased, the kind and quantity that may be purchased, and the date and location of use.
So long as a municipality properly issues a permit, it cannot be civilly liable for damage to any person or property that results from the issuance of the permit. However, municipalities can still be liable for other firework-related incidents.
For instance, in 1987, a father and his seven-year-old son won a negligence suit against the city of Franklin. Both were injured after the son found an unexploded firework in a park, days after the city held a July 4 display. The city was responsible for clean-up.
Fireworks can only be sold to individuals who have valid permits. However, in-state firework vendors can also sell fireworks to nonresidents who don’t have a permit to buy, so long as the fireworks are packaged and shipped outside the state.3
Illegal sales are subject to a $1,000 fine.
However, if an Indian tribe has its own firework ordinance, state firework regulations cannot be enforced on tribal lands unless exceptional circumstances exist.4
Fireworks and Forest Fires
Fred Bourg, who took over as Bayfield County District Attorney in 2013, has noted that fireworks don’t generally cause fire problems but the risk is there.
“I can see problems occurring in years where conditions are dry,” Bourg said.
Catherine Koele, a forest fire prevention specialist at the Wisconsin DNR’s Woodruff office, has said that fireworks annually trigger five percent of all forest fires in Wisconsin.
“Once a responsible party is identified, there could be charges brought against that individual at the prosecutor’s discretion,” Koele said. “It’s like any other forest fire investigation. We have special investigators to find responsible parties.”
The prosecution success rate is generally high in firework cases, Koele says, because culprits often light them in the presence of witnesses.
Gary Bibow, a DNR forest fire law enforcement specialist, says firework use on campgrounds is common near Wisconsin Dells. He notes that responsible parties will pay citations and the costs associated with extinguishing any fires they start.
In addition, private landowners affected by forest fires can sue for double damages and attorney’s fees in cases where someone is negligent in starting a forest fire under Wis. Stat. section 26.21(1). This provision would certainly cover firework negligence. However, there is no reported case involving fireworks under this provision.
While fireworks are a traditional part of July 4 celebrations, there are legal pitfalls to consider before lighting them off. Those include citations for use without permits, and the liability fallout that may occur if someone is injured or property is damaged.
1 Wis. Stat. § 167.10.
2 See 36 CFR 261.52.
3 See State v. Victory Fireworks Inc., 230 Wis. 2d 721, 602 N.W.2d 128 (Ct. App. 1999).
4 See State v. Cutler, 189 Wis.2d 494, 527 N.W.2d 400 (Ct. App. 1994) (unpublished opinion).