Can a Florida city issue a new permit to sell fireworks under the agricultural-use exception if it never issued one before 2007?

Plain-English summary

The City of Altamonte Springs had been asked to issue a permit for the sale of fireworks under the agricultural-use exception in section 791.07, Florida Statutes (the so-called "scare birds" exception, which lets fireworks be sold for use in frightening birds from agricultural works and fish hatcheries). The city had never issued any fireworks permits before. The Fire Marshal asked the AG whether the city could start.

AG Pam Bondi said no. The answer was driven by a moratorium added by the legislature in 2007. Chapter 2007-67, Laws of Florida, created a Consumer Fireworks Task Force inside the Department of Agriculture and Consumer Services and froze the issuance of new fireworks-sales permits while the task force completed its work. The freeze was supposed to lift if the legislature enacted a comprehensive fireworks regulatory framework by July 1, 2008. The task force reported in January 2008, but the legislature never passed a replacement statute, and never repealed the freeze. By the plain language of section 10(5) of Chapter 2007-67 (which is reprinted as an editorial note appended to section 791.07 itself), no new permanent retail sales facility could open in Florida after March 8, 2007, and no local government could issue more temporary-facility permits than it had issued in calendar year 2006.

Because Altamonte Springs had issued zero fireworks permits before March 8, 2007, its 2026-quota-equivalent was zero, both for permanent and temporary facilities. AGO 2009-18 had reached the same conclusion when the City of Coral Springs asked about its ability to adopt new fireworks ordinances after the 2007 moratorium.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Florida's fireworks regulatory scheme changed significantly in 2020 (Chapter 2020-129, Laws of Florida) with the enactment of section 791.08, which expressly authorized consumer fireworks for three holidays (Memorial Day, July 4, New Year's Eve). That legislation, along with any subsequent amendments, may have altered the moratorium's force. Check current law before relying on this opinion.

Common questions

Q: What did section 791.07 actually authorize?
A: Section 791.07, Florida Statutes, allowed individuals to sell fireworks for use "solely and exclusively in frightening birds from agricultural works and fish hatcheries." The Department of Agriculture and Consumer Services implemented the section through rules requiring a permit from the county sheriff (Rules 5A-3.001 and 5A-3.002, Florida Administrative Code).

Q: Why was a moratorium attached to an agricultural-use statute?
A: Because section 791.07 had become a workaround. Most consumer fireworks sales in Florida happened through "agricultural use" certifications that were never actually used to scare birds. The 2007 task force was set up to study reform. The moratorium kept the workaround from expanding while the legislature deliberated. The deliberation went nowhere by the 2008 deadline, so the moratorium kept running indefinitely.

Q: What exactly was frozen in place?
A: Three things. First, no new permanent retail sales facility could open in Florida after March 8, 2007, unless its site-plan approval and construction had begun by that date. Second, no county, municipality, or other local government could issue more permits for temporary retail sales facilities (think July 4 fireworks tents) than it had issued in the previous calendar year (2006). Third, no local government could adopt an ordinance after March 8, 2007, that directly prohibited or interfered with state-law safety standards or the right to buy, sell, use, or possess consumer fireworks.

Q: Could Altamonte Springs issue any temporary fireworks tent permits?
A: No. The temporary-permit quota was set at each local government's 2006 issuance count. Altamonte Springs had issued zero in 2006. Zero plus zero is still zero.

Q: Did the 2007 moratorium preempt municipal home-rule authority?
A: Effectively yes, on this narrow question. The opinion treated the moratorium as a state-law constraint binding all municipalities, regardless of their home-rule charters. AGO 2009-18 had already addressed the parallel ordinance-adoption side of the freeze.

Q: Could the legislature lift the freeze?
A: At any time. The moratorium had its own sunset built in (replacement by comprehensive fireworks legislation by July 1, 2008). The opinion noted that the prohibition would remain in effect "until the Legislature takes action to remove the prohibition," quoting AGO 2009-18.

Background and statutory framework

Florida's fireworks law historically followed a strange path. Chapter 791, Florida Statutes, generally prohibited the sale and use of consumer fireworks. Section 791.07 carved out the "scare birds" exception for agricultural and fish-hatchery use. Retailers exploited the exception by selling consumer fireworks to buyers who signed a sworn certification that the fireworks would be used for agricultural purposes. Enforcement was light, and the certification became a fig leaf for ordinary consumer sales of bottle rockets, mortars, and similar items.

The 2007 task force was the legislature's response to repeated proposals to either crack down on the workaround or formally legalize consumer fireworks. While the task force did its work, the legislature froze the market in place to prevent either explosive growth in fictitious agricultural sales or a regulatory race-to-the-bottom among local governments. The freeze had a clear sunset (July 1, 2008) tied to legislative passage of replacement law. When the legislature missed that sunset, the freeze just kept running. By 2016, the moratorium was nine years old and still in force.

The editorial note appended to section 791.07 reprinting section 10(5) of Chapter 2007-67 was placed there under section 11.242(4)(d), Florida Statutes, which authorizes the Office of Legislative Services to include reference notes, data, and other materials in the published statutes for reader convenience. That made the moratorium discoverable to anyone reading the statute itself, which the AG noted as part of why it controlled.

Citations and references

Statutes:

• § 791.07, Fla. Stat. (agricultural and fish hatchery use of fireworks)
• § 791.02, Fla. Stat. (sale of fireworks)
• § 791.01, Fla. Stat. (definitions)
• Chapter 2007-67, Laws of Florida, § 10(5) (the 2007 fireworks moratorium)
• Rules 5A-3.001 and 5A-3.002, Fla. Admin. Code (implementing section 791.07)

Prior AG opinions cited: Op. Att'y Gen. Fla. 2009-18; Inf. Op. to City Attorney Maryanne Downs, City of Orlando, June 18, 2000.

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/fireworks-municipalities-ordinances
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1515

Original opinion text

Mr. James A. ("Skip") Fowler

City Attorney

Fowler, O'Quinn, Feeny & Sneed P.A.

28 West Central Boulevard, 4th Floor

Orlando, Florida 32801

RE: FIREWORKS – MUNICIPALITIES– ORDINANCES – municipality prohibited by s. 10(5), Ch. 2007-67, Laws of Fla., from issuing new permits for permanent or temporary facilities to sell fireworks pursuant to s. 791.07, Fla. Stat.

Dear Mr. Fowler:

On behalf of the City of Altamonte Springs Fire Marshal/Building Official, you have asked for an opinion on the following question:

Does section 791.07, Florida Statutes, including the note from Chapter 2007-67, Laws of Florida, prohibit the City of Altamonte Springs from issuing a permit for the sale of fireworks in the next calendar year?

In sum:

Section 791.07, Florida Statutes, prevents the City of Altamonte Springs from permitting a new permanent or temporary retail sales facility to engage in sales of fireworks authorized by section 791.07, Florida Statutes, because the city had not issued any such permits before March 8, 2007.

Section 791.02, Florida Statutes, generally prohibits individuals from selling fireworks.[1] Section 791.07, Florida Statutes, however, authorizes individuals to sell fireworks for "frightening birds from agricultural works and fish hatcheries." According to your request, the City of Altamonte Springs has been asked to issue a permit for the sale of fireworks pursuant to this provision. The city has never previously issued a permit for the sale of fireworks for any purpose.

Section 791.07, Florida Statutes, provides:

"Agricultural and fish hatchery use.—Nothing in this chapter shall prohibit the importation, purchase, sale, or use of fireworks used or to be used solely and exclusively in frightening birds from agricultural works and fish hatcheries; and such use shall be governed entirely by the rules prescribed by the Department of Agriculture and Consumer Services."[2]

Appended to this provision is a note quoting section 10(5), Chapter 2007-67, Laws of Florida, which was part of an enactment creating the Consumer Fireworks Task Force within the Department of Agriculture and Consumer Services. The Legislature created the task force in 2007 to study and take public input and testimony on multiple factors related to the sale, regulation, and use of consumer fireworks. The Task Force was directed to present its report to the Legislature by January 15, 2008, whereupon the task force would be dissolved. The enactment closed with paragraph (5), which is now appended to section 791.07 and provides:

"Pending completion of the Legislature's review of the task force's report and to ensure that fire prevention and safety standards are uniform, a new permanent retail sales facility engaged in sales otherwise permitted under s. 791.07, Florida Statutes, may not be opened in this state after March 8, 2007, unless the permanent retail sales facility has received site-plan approval and construction has begun on or before March 8, 2007; the number of permits for temporary retail sales facilities, such as tents, engaged in sales otherwise permitted by s. 791.07, Florida Statutes, which are issued after March 8, 2007, by a county, municipality, or other unit of local government may not exceed the number of permits that such governmental entity issued for such facilities during the previous calendar year; and a municipality, county, or other unit of local government may not adopt an ordinance, rule, regulation, or other law after March 8, 2007, which directly prohibits or directly interferes with the safety standards established by state law or the right to purchase, sell, use, or possess consumer fireworks in this state. However, if the Legislature enacts legislation to provide for the comprehensive regulation of fire prevention and safety standards for the use of consumer fireworks to replace this subsection on or before July 1, 2008, this subsection does not prohibit opening any such facility, permitting any such temporary facility, or adopting any such ordinance or other law after such legislation is enacted." (e.s.)

The task force presented its report to the Legislature on January 15, 2008.[3] The Legislature, however, did not enact legislation providing comprehensive regulation regarding the use of consumer fireworks by the deadline of July 1, 2008, nor has it repealed the moratorium.[4]

By the plain language of section 10(5), Chapter 2007-67, Laws of Florida, which is quoted in full in the note accompanying section 791.07, Florida Statutes,[5] local governments are precluded from allowing a new facility to be opened for sale of fireworks, and each local government may now only issue as many permits allowing temporary facilities to engage in such sales as it had issued in calendar year 2006. Having never issued a permit for fireworks sale in the City of Altamonte Springs, the city is now barred from issuing any such permit.

In Attorney General Opinion 2009-18, this office concluded that the City of Coral Springs was precluded from enacting an ordinance imposing any limits on state fireworks laws, because the city had no ordinances regulating fireworks sale or use prior to the moratorium of section 10(5), Chapter 2007-67, Laws of Florida. The opinion concluded by stating that section 10(5) "prohibition remains in effect until the Legislature takes action to remove the prohibition."

Accordingly, it is my opinion, in light of the language in section 10(5), Chapter 2007-67, Laws of Florida, that the City of Altamonte Springs, which has issued no prior permits for the sale of fireworks, is precluded from issuing any permits for the sale of fireworks in the next calendar year.

Sincerely,

Pam Bondi

Attorney General

PB/tebg

[1] "Fireworks" are defined in section 791.01(4), Fla. Stat., as, in part, "any combustible or explosive composition or substance or combination of substances[.]" The term does not include "sparklers," defined in paragraph (8) as, in part, "a device which emits showers of sparks upon burning[.]"

[2] The Department of Agriculture and Consumer Services has enacted two rules implementing s. 791.07, Fla. Stat. Rules 5A-3.001 and 5A-3.002, Fla. Admin. Code, set forth the procedure for obtaining permission from the county sheriff for use of fireworks under s. 791.07, Fla. Stat.

[3] See Op. Att'y Gen. Fla. 09-18 (2009), fn. 4, which sets forth some of the recommendations the task force made in its report.

[4] A bill was proposed in 2008 but died in committee, and is described in fn. 6 of Op. Att'y Gen. Fla. 09-18 (2009). And see Inf. Op. to City Attorney Maryanne Downs, City of Orlando, dated June 18, 2000.

[5] Section 11.242(4)(d), Fla. Stat., provides that "[t]he published edition of the Florida Statutes shall contain … matters, notes, data, and other material as may be deemed necessary or admissible by the Office of Legislative Services for reference, convenience, or interpretation."