Can a New York town's fireworks-permit officer issue a permit for a private (non-public) fireworks display now that Penal Law § 405.00 was amended in 2009, even if the town's local fireworks law has not been updated?

Plain-English summary

The Town of Glenville's local fireworks-permit law had not been updated since the State changed Penal Law § 405.00 in 2009. The Town Attorney asked the AG whether the Town's permit authority could now issue permits for private (i.e., non-public) fireworks displays in response to qualified applications.

Yes. The AG concluded that state law since 2009 expressly authorizes permits for private fireworks displays, and § 405.00(5)'s preemption clause means the Town's outdated local law is no obstacle.

The pre-2009 framework. Penal Law § 270.00 makes it generally illegal to offer, sell, possess, use, or explode fireworks. § 270.00(2) provides an exception for fireworks displays conducted under a § 405.00 permit. Before 2009, § 405.00(2) authorized permits for "public" displays only. Two AG opinions had read that to forbid permits for private displays:
- Op. Att'y Gen. (Inf.) No. 2007-3.
- Op. Att'y Gen. (Inf.) No. 91-17.

The same opinions, along with Op. Att'y Gen. (Inf.) No. 82-18, had also concluded that § 405.00(5) preempts local fireworks regulations, whether by ordinance or local law. The state has occupied the field except for one narrow carve-out (use of fireworks for television broadcasts).

The 2009 amendment. L. 2009, ch. 57, Part CC, § 21 (eff. Apr. 7, 2009) rewrote § 405.00(2). The "public displays" limitation was removed. The amended text says the permit authority "may grant a permit for the display of fireworks to municipalities, fair association[s], amusement parks, persons, or organizations of individuals that submit an application in writing." § 405.00(2)(g) lets the permit authority require any additional information it deems necessary to protect persons or property. The 2009 amendment did not touch the preemption clause in § 405.00(5).

Preemption resolves the local-law conflict. Because state law occupies the field, a local law regulating the same subject is automatically inconsistent, whether or not the local terms actually clash with the statute. Albany Area Builders Ass'n v. Town of Guilderland, 74 N.Y.2d 372, 377 (1989), is the controlling preemption case. A local law cannot inhibit the operation of the state's superseding law.

Practical instruction to Glenville. The Town's old local law is functionally inoperative on this point. The permit authority can issue permits for qualified private-display applications under the updated state framework. The Town may want to update its permit application form to align with the current statute and to require any safety information § 405.00(2)(g) lets it ask for.

Currency note

This opinion was issued in 2010. 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.

Common questions

Does this mean any New Yorker can throw a backyard fireworks show?
No. § 405.00 governs permitted displays. The permit application has substantive requirements (location, qualifications of operators, distances from spectators and structures, insurance, the safety details § 405.00(2)(g) lets the permit authority demand). Without a permit, fireworks possession and use remains an offense under § 270.00.

Who is the "permit authority"?
The agency or officer designated by the local government to issue fireworks permits. Each town, village, or city designates its own. Many municipalities give the role to the fire chief, fire marshal, or code enforcement officer.

Can the Town refuse to issue permits for private displays as a matter of policy?
Maybe. The statute says the permit authority "may grant" a permit, which suggests discretion. But because state law has preempted local regulation of fireworks displays, a blanket policy of refusing permits to private applicants could be challenged as an attempt to do indirectly what the local law cannot do directly. Counsel should be cautious.

Can the Town impose insurance, bond, or safety conditions?
Yes, via § 405.00(2)(g) ("such other information as the permit authority may deem necessary to protect persons or property"). Conditions tied to the safety analysis under that subsection are within statutory authority.

Does the preemption rule extend to consumer-grade fireworks legalized in 2015?
This 2010 opinion does not address that. Penal Law § 270.00 has since been amended (most notably by L. 2014, ch. 477) to permit "sparkling devices" in opt-in counties. Counsel addressing consumer-fireworks questions today should work from the current Penal Law, not this opinion's historical baseline.

Background and statutory framework

Penal Law § 270.00. The general fireworks prohibition. Subsection (2) creates the offense for possession, use, and explosion, with a permit exception under § 405.00.

Penal Law § 405.00. Fireworks permit framework. § 405.00(1) defines permit authority. § 405.00(2) (post-2009) authorizes permits to municipalities, fair associations, amusement parks, persons, and organizations of individuals. § 405.00(2)(g) is the catch-all for additional application content. § 405.00(3)-(4) cover specific permit conditions. § 405.00(5) preempts local regulations, with a narrow TV-broadcast exception.

2009 amendment. L. 2009, ch. 57, Part CC, § 21 reworked § 405.00(2) to allow private-display permits. The change was part of a larger Article VII enacted with the budget that year.

State preemption doctrine. Albany Area Builders Ass'n v. Town of Guilderland, 74 N.Y.2d 372, 377 (1989), explains that when the State occupies a field, local law is inconsistent even if it does not actually conflict with the state text, because it inhibits the State's overriding policy concerns.

Prior AG guidance. Op. Att'y Gen. (Inf.) Nos. 82-18, 91-17, 2007-3 (preemption; pre-2009 rule limiting permits to public displays).

Citations

• Penal Law § 270.00 (general fireworks prohibition); § 270.00(2) (offense with permit exception).
• Penal Law § 405.00 (permit framework); § 405.00(1) (permit authority); § 405.00(2) (categories of permittees post-2009); § 405.00(2)(g) (additional information for protection of persons or property); § 405.00(3)-(4) (permit conditions); § 405.00(5) (state preemption of local regulation with narrow TV-broadcast exception).
• L. 2009, ch. 57, Part CC, § 21 (2009 amendment authorizing private-display permits).
• Albany Area Builders Ass'n v. Town of Guilderland, 74 N.Y.2d 372, 377 (1989) (state preemption doctrine).
• Op. Att'y Gen. (Inf.) No. 2007-3 (pre-2009 rule; preemption).
• Op. Att'y Gen. (Inf.) No. 91-17 (same).
• Op. Att'y Gen. (Inf.) No. 82-18 (preemption of local fireworks regulation).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2010-1_pw.pdf

Original opinion text

Penal Law §§ 270.00, 270.00(2), 405.00, 405.00(1), 405.00(2), 405.00(2)(g), 405.00(3), 405.00(4), 405.00(5)

The Town's permit authority is authorized, pursuant to state law, to issue permits for the private display of fireworks in response to qualified applications.

July 1, 2010

Michael R. Cuevas
Town Attorney
Town of Glenville
Roemer, Wallens, Gold & Mineaux, LLP
13 Columbia Circle
Albany, New York 12203

Informal Opinion
No. 2010-1

Dear Mr. Cuevas:

You have requested an opinion as to whether the Town of Glenville ("the Town") may issue permits for private fireworks displays. You have made this request because the Town currently has a local law relating to the issuing of fireworks permits that has not been amended since the state law governing fireworks permits was amended in 2009. As explained below, we believe that the Town's permit authority is authorized, pursuant to state law, to issue permits for the private display of fireworks in response to qualified applications.

Penal Law § 270.00 prohibits a person from offering or exposing for sale, selling, or furnishing any fireworks, and from possessing, using, exploding, or causing to explode any fireworks. Penal Law § 270.00(2). A person does not commit an offense proscribed by section 270.00 if he or she obtains a permit pursuant to Penal Law § 405.00. Penal Law § 270.00(2).

Penal Law § 405.00 governs permits for displays of fireworks. It authorizes the permit authority of a local government, meaning the agency or officer designated by the local government to issue such licenses, to issue permits for fireworks displays under specified circumstances. Penal Law § 405.00(1), (2)-(4).

We have previously opined that Penal Law § 405.00(2) authorized the issuance of permits for only public displays, and that permits could not be issued for private displays, which would remain illegal under Penal Law § 270.00. Op. Att'y Gen. (Inf.) No. 2007-3; Op. Att'y Gen. (Inf.) No. 91-17. We also have concluded that local legislation regulating fireworks was expressly preempted by Penal Law § 405.00(5), which provides that "[a]ll local ordinances regulating or prohibiting the display of fireworks are hereby superseded by the provisions of this section." See Op. Att'y Gen. (Inf.) No. 2007-3; Op. Att'y Gen. (Inf.) No. 91-17; Op. Att'y Gen. (Inf.) No. 82-18. We have opined that this state statute preempts all local regulations, whether by ordinance or local law. Op. Att'y Gen. (Inf.) No. 82-18.

In 2009, the Legislature amended Penal Law § 405.00 to eliminate the requirement that permits be issued for "public" displays and to authorize the issuance of permits to individuals, who previously had not been included in those able to obtain permits. See Act of Apr. 7, 2009, ch. 57, Part CC, § 21, 2009 McKinney's N.Y. Laws 235, 282-294. Now the Town's "permit authority may grant a permit for the display of fireworks to municipalities, fair association, amusement parks, persons, or organizations of individuals that submit an application in writing." Penal Law § 405.00(2) (emphasis added). Section 405.00(2) also provides the information that must be included in an application for a fireworks display permit, including "such other information as the permit authority may deem necessary to protect persons or property." Id. § 405.00(2)(g).

The 2009 amendment left untouched subdivision 5 of section 405.00, which still provides that it supersedes all local ordinances. The Legislature's intent, therefore, continues to be that state law preempts local regulations regulating or prohibiting the display of fireworks. And, where the State has preempted the field, a local law regulating the same subject matter is deemed inconsistent with the State's transcendent interest, whether or not the terms of the local law actually conflict with the statewide statute. Albany Area Builders Ass'n v. Town of Guilderland, 74 N.Y.2d 372, 377 (1989). Such local laws would tend to inhibit the operation of the State's superseding law and thereby thwart the operation of the State's overriding policy concerns. Id.

Thus, the fact that the Town has not amended its local law to reflect the recent change in state law is irrelevant to the question presented. State law now explicitly authorizes a local permit authority to issue a fireworks display permit for the private display of fireworks in response to a qualified application. The Town's permit authority may need to revise the permit application to reflect current state law or include such other information that he or she deems necessary pursuant to Penal Law § 405.00(2)(g). Under existing state law, however, the permit authority is authorized to issue permits for the private display of fireworks in response to qualified applications, regardless of the existence of any local law to the contrary.

Penal Law § 405.00(5) provides one narrow exception, allowing every city, town, or village to enact ordinances or local laws regulating or prohibiting the use, or the storage, transportation, or sale for use, of fireworks in the preparation for or in connection with television broadcasts.

The Attorney General issues formal opinions only to officers and departments of state government. Thus, this is an informal opinion rendered to assist you in advising the municipality you represent.

Very truly yours,

KATHRYN SHEINGOLD
Assistant Solicitor General
in Charge of Opinions