Who issues the New York fireworks-display permit when the show happens on land owned by a state regulating district inside a town?

Plain-English summary

Citizens raised public-safety concerns about fireworks displays held by access-permit holders on shoreline property of the Great Sacandaga Reservoir, owned by the Hudson River-Black River Regulating District. The District's counsel asked the Attorney General who, under Penal Law § 405.00, had authority to issue or withhold a fireworks-display permit: the District, the Adirondack Park Agency (because the property is in the Adirondack Park), or the town (Northampton, in Fulton County) where the property sits?

Attorney General Eliot Spitzer's office identified the town. Penal Law § 405.00 defines "permit authority" by territorial jurisdiction: state parks (the state agency having custody and control); county parks (the county commission); cities, villages, and towns (their respective designated officials). The Regulating District is not a state agency operating a state recreational park. It is a public corporation created under ECL Article 15, Title 21 for flood-control purposes; the land is in state ownership but the District does not provide police or fire protection. The Adirondack Park Agency is also not a "state agency having custody and control of a state park" in the § 405.00 sense; the Adirondack Park is a geographical region containing both state and private lands, and the APA performs regulatory oversight rather than direct custody and control of state lands. With both alternatives ruled out, the statute's default rule applies: the city, town, or village containing the property is the permit authority. The Appellate Division's analysis in Rill v. Chiarella (1966-69) had reached the same result for a different town-owned park inside a village.

The opinion is also a useful reminder that ownership and police-power jurisdiction are different. The District owns the property and the town pays no taxes on it (the District does, under ECL § 15-2115), but the town's police-power authority over public safety on the land makes it the permit authority.

Currency note

This opinion was issued in 2004. 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.

Penal Law § 405.00 and the related regulatory framework have been amended. State approval and notification requirements for fireworks displays have continued to evolve at the state, county, and local levels. An organizer planning a display today should verify the current statute and any updated Department of State or local fire code rules.

Common questions

Q: What is the Hudson River-Black River Regulating District?
A: A public corporation created under ECL Article 15, Title 21 to manage Hudson and Black River water flows, primarily for flood control. It owns reservoir lands (such as the Great Sacandaga Reservoir) titled in the State's name, pays local property taxes, and issues access permits to neighboring landowners under 6 NYCRR Part 606.

Q: What does Penal Law § 405.00 do?
A: It is the general public-fireworks-display permit statute. Anyone wanting to hold a public fireworks display must obtain a permit from the local "permit authority," which by definition is the state agency operating a state park, the county park commission, or city/town/village officials, depending on the territorial location of the display.

Q: Why is the Adirondack Park Agency not the right authority?
A: The Adirondack Park is a geographic region (ECL § 9-0101) containing both state and private lands. The APA provides regulatory oversight over land use and development; it does not have direct "custody and control" of any specific park property in the way that the Office of Parks, Recreation and Historic Preservation has custody of state recreational parks. The 1972 statutory amendment that replaced "regional state park commissions" with "state agency having custody and control" was not intended to expand the definition to the APA.

Q: Does ownership of the property determine the permit authority?
A: No. Rill v. Chiarella (1966) confirms that the touchstone is municipal jurisdiction over the territory, not ownership. A town-owned park inside a village made the village the permit authority. Similarly, District-owned reservoir land inside a town makes the town the permit authority.

Q: What information must a fireworks permit application include?
A: Penal Law § 405.00(2) requires location of discharge, information about who is discharging, the number and type of fireworks, storage details, and a diagram of the site. The permit authority can require additional information it "may deem necessary to protect persons or property." Section 405.00(3) sets minimum safety standards (distance from buildings, highways, railroads, telephone lines). Section 405.00(4) requires a bond or indemnity insurance.

Q: What if the display is on land within a state park?
A: The state agency operating the park is the permit authority. The 1972 amendment placed that authority with the agency that has "custody and control" of the park, which today is typically the Office of Parks, Recreation and Historic Preservation.

Background and statutory framework

Penal Law § 270.00(2)(b) makes it a violation to possess and use fireworks in New York, subject to limited exceptions. Section 405.00 sets out the regulatory framework for the principal exception: public fireworks displays sponsored by a municipality, fair association, amusement park, or organization of individuals.

The "permit authority" definition in § 405.00(1) traces back to 1940 (L. 1940, ch. 387), with a 1941 amendment (L. 1941, ch. 731) adding county park commissions in response to a Westchester County request. The 1972 amendment (L. 1972, ch. 660) replaced "regional state park commissions" with "state agency having custody and control" of the park, reflecting the transfer of authority to the Office of Parks, Recreation and Historic Preservation. None of these amendments expanded the definition to cover state regulatory agencies or geographical-region authorities like the Adirondack Park Agency.

The statute's policy is to assign permit responsibility to the governmental body with public-safety responsibility for the territory. The 1940 enacting history makes clear the law was prompted by accidents and injuries from unregulated fireworks; the local body with police and fire authority is best positioned to evaluate safety conditions and respond to emergencies.

The Regulating District has no police or fire infrastructure. The Adirondack Park Agency is a land-use regulator, not a custodian of specific parklands. The default rule (city, town, or village within whose territory the display will occur) is the operative answer.

Citations and references

Statutes:

• Environmental Conservation Law §§ 9-0101, 9-0105(2), 15-2101, 15-2105, 15-2109, 15-2111, 15-2115, 41-0101, art. 15
• Executive Law art. 27 (Adirondack Park Agency)
• Penal Law §§ 270.00, 405.00
• L. 1940, ch. 387; L. 1941, ch. 731; L. 1972, ch. 660
• 6 NYCRR pt. 606 (Regulating District access permit regulations)

Cases:

• Rill v. Chiarella, 50 Misc. 2d 105 (Sup. Ct. Westchester County 1966), rev'd on other grounds, 30 A.D.2d 852 (2d Dep't 1968), aff'd, 25 N.Y.2d 702 (1969)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/2004-F7_pw.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ENVIRONMENTAL CONSERVATION LAW §§ 9-0101, 9-0105(2), 15-2101, 15-2105, 15-2109, 15-2111, 15-2115, 41-0101, ART. 15; EXECUTIVE LAW ART. 27; PENAL LAW §§ 270.00, 405.00; L. 1972, CH. 660; L. 1941, CH. 731; L. 1940, CH. 387; 6 N.Y.C.R.R. §§ 606.15-606.17, 606.25, 606.39, 606.41, 606.65-606.69, PT. 606.

The municipality in which the property is located is the proper "permit authority" to issue a permit under Penal Law § 405.00 for a public fireworks display on Land administered by the Hudson River-Black River regulating district under its Access Permit Program.

December 23, 2004

Shari Calnero
Counsel
Board of Hudson River-Black River Regulating District
350 Northern Boulevard
Albany, NY 12204

Formal Opinion No. 2004-F7

Dear Ms. Calnero:

You have asked which entity is the proper authority to issue a permit for a public fireworks display pursuant to Penal Law § 405.00 on Land administered by the Hudson River-Black River Regulating District under its Access Permit System. We conclude that the municipality in which the subject property is located is the proper "permit authority" under Penal Law § 405.00.

BACKGROUND

The Regulating District

The Hudson River-Black River Regulating District ("the Regulating District") is a public corporation created pursuant to Article 15, Title 21 of the Environmental Conservation Law (hereinafter "ECL") to regulate the flow of the Hudson River and Black River, primarily for the purpose of flood control. The District is administered by a Board appointed by the Governor. ECL § 15-2105. Pursuant to statute, the Regulating District may acquire real property for its statutory purposes, and title to property so acquired is taken in the name of the State. Id. §§ 15-2101(1), 15-2111(1),(8). The Regulating District is responsible for the payment of local real property taxes on the property it acquires. Id. § 15-2115. You have informed us that police and fire protection for District property is provided by the municipality in which the District property is located.

One of the reservoirs operated by the District is the Great Sacandaga Reservoir. Under an Access Permit System, the Regulating District makes segments of the shoreline owned by the District available for private use. See 6 N.Y.C.R.R. Part 606. The District issues annual commercial and non-commercial permits to neighboring landowners that entitle the landowners to use designated sections of the Reservoir area. See 6 N.Y.C.R.R. § 606.25.

You have explained that the Regulating District has been approached by citizens who have expressed public safety concerns with respect to fireworks displays that occur periodically on an access permit area in the Town of Northampton in Fulton County. The question has arisen as to whether the Regulating District is the "permit authority" with authority to issue a permit for such fireworks displays under Penal Law § 405.00.

Statutes Governing Public Fireworks Displays

It is illegal to possess and use fireworks in New York except where a specific statutory exemption applies. Penal Law § 270.00(2)(b)(i). An exemption is provided for public fireworks displays for which a permit is obtained pursuant to Penal Law § 405.00. See id. § 270.00(2)(b)(ii); id. § 270.00(3).

Under Penal Law § 405.00, municipalities, fair associations, amusement parks or organizations of individuals may apply to a "permit authority" for a permit to sponsor a public fireworks display. See Penal Law § 405.00(2). State law establishes the minimum safety standards for public fireworks displays, which standards govern the location of discharge in relation to buildings, highways, railroads, telephone lines, trees and other overhead obstructions, the location of restraining lines for the audience, the manner of discharge and other subjects. Id. § 405.00(3). The permit application must demonstrate compliance with these requirements. Id. The application must include additional information, including the location of the fireworks display, information regarding the persons who will be discharging the fireworks, the number and type of fireworks to be discharged, the manner and place of storage of fireworks, a diagram indicating the place of discharge and all relevant structures, as well as "[s]uch other information as the permit authority may deem necessary to protect persons or property." Id. § 405.00(2)(a)-(h). A bond or indemnity insurance is also required to cover any damage to persons or property caused by the fireworks display. See id. § 405.00(4).

At issue here is which entity qualifies as a "permit authority" for purposes of this fireworks permitting scheme. "Permit authority" is defined as

the agency authorized to grant and issue the permits provided in this section, which agency in the territory within a state park shall be the state agency having custody and control thereof, in the territory within a county park shall be the county park commission, or such other agency having jurisdiction, control and/or operation of the parks or parkways within which any fireworks are to be displayed, in a city shall be the duly constituted licensing agency thereof and, in the absence of such agency, shall be an officer designated for the purpose by the legislative body thereof, in a village shall be an officer designated for the purpose by the board of trustees thereof and in the territory of a town outside of villages shall be an officer designated for the purpose by the town board thereof.

Penal Law § 405.00(1).

ANALYSIS

You have asked whether the Regulating District would be considered the permit authority under Penal Law § 405.00 for a public fireworks display to be held on District land for which the District has issued an access permit, and if not, who the proper permitting authority would be.

The statute defines the proper "permit authority" in terms of the territorial jurisdiction of the property on which the public fireworks display is to be held, by directing that the "permit authority" of "a state park, county park, city, village or town" may grant a permit. Penal Law § 405.00(2). For territory in a state park, the "permit authority" is the state agency having custody and control of the park, and for territory in a county park, it is the county park commission or other agency having custody and control of the county park. Penal Law § 405.00(1). For territory outside a state or county park, the permit authority is a city official for territory in a city, a village official for territory in a village, and a town official for territory in a town outside of any village. Id. By its terms, this definition does not cover the Regulating District, which is neither a state agency having custody and control of a state park nor, obviously, a county park commission or a city, village or town.

Nor do we find any basis for interpreting the definition of "permit authority" broadly so to include the Regulating District. The purpose of the fireworks permit system is to ensure that authorized public fireworks displays are held in a manner that does not jeopardize public safety. Further, the criteria for granting a permit is geared toward public safety considerations. These factors indicate that the Legislature intended the permit authority to be the governmental body with authority over public safety matters on the property on which the display will occur. The governmental body in charge of police and fire protection for that territory will be in the best position to determine whether and under what conditions a public fireworks display can safely be held.

As noted, you have explained that the municipality in which the Regulating District's property is located is responsible for providing police and fire protection for that property. The Regulating District does not have its own public safety personnel. Nor does the District's enabling act expressly grant the District authority to provide public safety services on its property. Thus, the purpose of the permitting scheme would not be served by interpreting the definition of "permit authority" broadly to include the Regulating District with respect to fireworks displays that occur on its property.

The legislative history of the definition of "permit authority" also indicates that a narrow construction of the definition was intended. In 1941, just one year after the statute was enacted, the reference to "the county park commission, or such other agency having jurisdiction, control and/or operation of the parks or parkways within which any fireworks are to be displayed" was added. The amendment, enacted at the request of the Westchester County Board of Supervisors, was intended to ensure that county park commissions or similar county agencies would have authority to issue a permit for displays in county parks. That the Legislature found it necessary to amend the statute in this manner indicates that it intended a narrow definition of "permit authority" to include only the entities specifically listed therein.

Based upon the plain language of the statute, its purpose and legislative history, we therefore believe that the Regulating District is not the proper "permit authority" for purposes of issuing a permit for a public fireworks display under Penal Law § 405.00.

You have indicated that much of the Regulating District's property in the Great Sacandaga Reservoir is in the Adirondack Park, and therefore a question has arisen as to whether the Adirondack Park Agency would be the permit authority for District property. We do not believe the reference in the definition of "permit authority" to the state agency having custody and control of a state park was intended to include an agency like the Adirondack Park Agency or a park like the Adirondack Park. The Adirondack Park is not a traditional state recreational park over which the State exercises full ownership, custody and control. Rather, the Adirondack Park is a geographical area that includes both state and private lands. See Environmental Conservation Law § 9-0101(1).

This conclusion is confirmed by the original definition of "permit authority" in the predecessor statute to Penal Law § 405.00, which with respect to state parks referred to the "regional state park commissions." This language clarifies that the reference to state parks was intended only to include the state recreational parks. We thus conclude that the Adirondack Park Agency is not the agency with authority to issue a fireworks permit under Penal Law § 405.00. Because the District's property in the Great Sacandaga Reservoir is not located in a state or county park, we believe the city, town or village in which the subject property lies is the proper permit authority under the express terms of the statute.

This conclusion is not inconsistent with the fact that the property is owned by the Regulating District. The relevant consideration for purposes of determining who is responsible for issuing the Penal Law § 405.00 permit is the jurisdictional territory in which the property is located, not the ownership of the property. Thus, in Rill v. Chiarella, 50 Misc. 2d 105 (Sup. Ct. Westchester County 1966), rev'd on other grounds, 30 A.D.2d 852 (2d Dep't 1968), aff'd, 25 N.Y.2d 702 (1969), the court held both the town and village liable in tort for injuries that occurred from a public fireworks display. The court specifically held that the village was the only appropriate permit authority under the predecessor statute to Penal Law § 405.00. The rationale of Rill applies here. The fact that the access area is owned by the Regulating District does not negate the town's role as the proper permit authority under Penal Law § 405. The touchstone is not ownership of the property, but municipal jurisdiction.

CONCLUSION

We conclude that the Hudson River-Black River Regulating District is not the permit authority authorized to issue a permit under Penal Law § 405.00 for a public fireworks display on District property subject to an access permit. Rather, the city, town or village in which the property is located is the proper permit authority.

Very truly yours,

ELIOT SPITZER
Attorney General