Must a New York town issue a fireworks display permit when an applicant meets the statutory requirements, and can the town tack on extra requirements of its own?
Plain-English summary
The Town of Caroline asked four related questions about how to handle fireworks-display permit applications under Penal Law § 405.00. The AG answered each in turn, and the answers added up to a tight rule: the state has occupied this field, and a town cannot add to it.
First, the permit is discretionary. The AG read § 405.00(2)'s language ("the permit authority may grant a permit") and § 405.00(3) ("the Town may provide for approval...by the head of the police or fire department") as permissive. Where the Legislature meant something to be mandatory, it used "shall." The opinion also leaned on the common-law rule that the power to grant a license implies the power to withhold it for good cause (Schwab, Barton Trucking, Maytum) and on Rill v. Chiarella, which read the fireworks statute to require careful review rather than rubber-stamping.
Second, the five-day advance-application requirement does not bind the permit authority to a five-day decision deadline. The statute requires applicants to file at least five days before the display, but does not impose a corresponding decision clock on the town. If the display date arrives without a decision, that operates as a denial because no display can go forward without a permit.
Third, the catch-all permit-application provision (§ 405.00(2)(g), which lets the permit authority demand "such other information...necessary to protect persons or property") authorizes information gathering only. It does not let the town tack on substantive permitting requirements such as specific firing locations or event-safety conditions. The AG reasoned that the gathering of information helps the permit authority make a sound decision under the existing requirements; it does not unlock a power to invent new ones.
Fourth, Municipal Home Rule Law § 10(1)(ii)(d)(3) lets a town supersede provisions of the Town Law in certain areas, but it does not authorize supersession of the Penal Law. The fireworks-permit scheme sits in the Penal Law. Section 405.00(5) was even more direct: "[a]ll local ordinances regulating or prohibiting the display of fireworks" are superseded by the state scheme.
Currency note
This opinion was issued in 2011. 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
Q: How did the AG distinguish "discretionary" from "ministerial" here?
A: By reading the verbs. "Shall" appeared in connection with what the application and the permit had to contain. "May" appeared in connection with whether to issue the permit at all. The opinion treated that drafting choice as deliberate. Add to that the option for review by the police and fire chiefs (which would be pointless if discretion were not allowed), and the picture was an exercise of judgment, not a checklist.
Q: What did the AG mean by "failure to grant a permit functions as a denial"?
A: Penal Law § 270.00(2) bars the use or possession of fireworks without a permit. So if the day of the display comes and no permit has issued, the display cannot legally happen. The opinion treated that as the practical equivalent of a denial. The opinion noted applicants should file complete applications well in advance for complicated displays or busy seasons.
Q: What's the line between "additional information" and "additional requirements"?
A: Additional information helps the permit authority confirm compliance with existing rules. The opinion gave examples: a contact phone number, a rain or wind backup date, a backup storage location, proof of the statutorily required bond or insurance, confirmation that no horse-breeder property sat within 500 yards of the boundary (a § 405.00(3-a) rule). New requirements would be extra prohibitions or conditions on top of state law (such as setbacks, time limits, or location restrictions) that the state scheme does not impose. The first is allowed. The second is preempted.
Q: Who is the "permit authority"?
A: Per § 405.00(1), it is "an officer designated for the purpose by the town board." So the decision is technically made by an officer the town board designates, not by the town board itself acting collectively. The opinion noted in passing that giving the permit authority a power to gather information would be an indirect way to give the town a power to impose substantive requirements, which is one reason the AG declined to read it that way.
Q: Does the supersession authority in Municipal Home Rule Law § 10 ever reach criminal statutes?
A: Not under § 10(1)(ii)(d)(3). That paragraph allowed supersession of provisions of the Town Law to the extent the town could otherwise adopt local laws. It did not extend to provisions of the Penal Law. The opinion treated this as the end of the inquiry on the supersession question.
Q: What was the one express exception in the supersession clause?
A: Section 405.00(5) reserved to cities, towns, and villages the power to enact ordinances or local laws regulating or prohibiting the use, storage, transportation, or sale of fireworks "in the preparation for or in connection with television broadcasts." The opinion flagged it but treated it as narrow.
Background and statutory framework
Article 270 of the Penal Law contains the substantive criminal prohibition on fireworks: § 270.00(2) makes the unauthorized sale, possession, or use of fireworks a misdemeanor. Section 405.00 creates the state's permit scheme, which is the path by which a sponsor of a public display can avoid that criminal prohibition. The permit-authority structure, the application contents, the timing rule, the bond/insurance requirement, the horse-breeder buffer, the storage rules, and the supersession clause are all in § 405.00.
The 2009 amendments noted in the opinion's footnote expanded the field of possible applicants from "organizations" to include "persons" and removed the "public display" limitation, but did not change the procedural framework that gave rise to Caroline's questions. The Court of Appeals had not weighed in on the procedural questions directly; the opinion relied on Rill v. Chiarella for the proposition that the permit-authority must engage with the application substantively.
The supersession clause in § 405.00(5) is a strong-form preemption clause: it sweeps "all" local ordinances regulating or prohibiting the display of fireworks, not just inconsistent ones. The opinion treated that as the dispositive textual signal that local layering on top of state law was forbidden.
Citations and references
Statutes:
- Penal Law § 270.00 (dangerous fireworks)
- Penal Law § 405.00 (fireworks permits)
- Municipal Home Rule Law § 10
- 12 N.Y.C.R.R. § 61-2.8 (Department of Labor fireworks regulations)
Cases:
- Matter of Barton Trucking Corp. v. O'Connell, 7 N.Y.2d 299 (1959) (power to license implies power to deny)
- People ex rel. Schwab v. Grant, 81 Sickels 473 (1891) (same)
- Rill v. Chiarella, 50 Misc. 2d 105 (Sup. Ct., Westchester Co. 1966) (fireworks statute requires substantive review)
Source
- Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
- Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2011-8_pw.pdf
Original opinion text
Penal Law §§ 270.00, 270.00(2), 405.00, 405.00(1), 405.00(2), 405.00(2)(a), 405.00(2)(b),
405.00(2)(e), 405.00(2)(g), 405.00(3), 405.00(3-a), 405.00(4), 405.00(5); Municipal Home
Rule Law § 10(1)(i)(d)(3)
Approval and issuance of a fireworks display permit is a discretionary act. Failure to
grant a permit by the time of a planned display effectively functions as a denial of an
application for a permit. A town may not impose additional permitting requirements
or supersede the fireworks permitting system established in the Penal Law.
July 20, 2011
Guy K. Krogh
Town Attorney
Town of Caroline
Thaler & Thaler
309 North Tioga Street
P.O. Box 266
Ithaca, New York 14851-0266
Informal Opinion
No. 2011-8
Dear Mr. Krogh:
You have requested an opinion concerning several questions about the procedure
for considering applications for fireworks permits under Penal Law §§ 270.00 and
405.00. Penal Law § 270.00(2) prohibits the sale, possession, or use of fireworks
without a permit. And Penal Law § 405.00 governs the issuance of permits for displays
of fireworks. In pertinent part, it authorizes the "permit authority" of a local
government to issue permits for fireworks displays under specified circumstances.
Penal Law § 405.00(1)-(4). It specifies the contents of the application for a permit,
including "[s]uch other information as the permit authority may deem necessary to
protect persons or property," as well as the contents of the permit itself. Id. §
405.00(2),(3). It provides that applications for permits for the display of fireworks
"shall be made at least five days in advance" of the date of the display. Id. § 405.00(3).
Finally, it provides that "[a]ll local ordinances regulating or prohibiting the display of
fireworks" are superseded by its provisions. Id. § 405.00(5).
- First, you ask whether the Town must issue a permit when the applicant
meets the permit requirements outlined by statute and regulation, or whether the
Town has discretion to deny a permit. We are of the opinion that the text and
structure of the statute make approval and issuance of a fireworks display permit a
discretionary act rather than a ministerial one mandated as a consequence of the
successful completion of an application. The Legislature consistently used the term
"may" rather than "shall" in connection with the issuance of a permit for the display of
fireworks. Penal Law § 405.00(2) provides that the permit authority "may" grant a
permit for the display of fireworks. Penal Law § 405.00(3) provides that the Town
"may" provide for approval of a permit by "the head of the police or fire department or
both where there are such departments." In contrast, the Legislature used the term
"shall" elsewhere in the same subdivisions of the statute, providing, for example, that
the application and the permit "shall" contain certain information. Thus, the statutory
text shows that the Legislature intended to distinguish between those provisions that
must occur and those in which the Town or the permit authority has discretion.
Further support for this conclusion can be found in the provision for authorizing
approval of permit applications by the fire chief and the police chief. If no exercise of
discretion were required, review by these additional town officers would be
superfluous.
Finally, this conclusion accords with established principles of common law. The
power to grant a license necessarily implies the power to withhold it for good cause.
Matter of Barton Trucking Corp. v. O'Connell, 7 N.Y.2d 299, 307 (1959); People ex rel.
Schwab v. Grant, 81 Sickels 473, 481 (1891); Maytum v. Nelson, 53 A.D.2d 221, 227 (4th
Dep't 1976). "A power to grant a privilege to one is inconsistent with the possession on
the part of another of an absolute right to exercise such privilege. The requirement
that a person must secure leave from some one to entitle him to exercise a right,
carries with it, by natural implication, a discretion on the part of the other to refuse to
grant it, if, in his judgment, it is improper or unwise to give the required consent."
Schwab, 81 Sickels at 481. In Rill v. Chiarella, 50 Misc. 2d 105 (Sup. Ct., Westchester
Co. 1966), modified on other grounds, 30 A.D.2d 852 (2d Dep't 1968), aff'd, 25 N.Y.2d
702 (1969), the court stated that the fireworks permitting statute "requires that plans
for a display be carefully reviewed before a permit be issued. Surely the Legislature
did not intend that municipal officials should simply receive and file the detailed
information required by the statute and then issue a permit. To the contrary, the
statute contemplates that the application will be reviewed and the municipal authority
will then determine whether, giving due consideration to public safety, the permit
should issue." 50 Misc. 2d at 113.
-
You also have asked whether, in light of the provision that "[a]ll applications
for permits for the display of fireworks shall be made at least five days in advance of
the date of the display," Penal Law § 405.00(3), the permit authority must review and
decide the permit application within those five days. We believe that while the statute
contemplates that five days will ordinarily be enough time for consideration of an
application, the statute does not command the authority to take action within five
days. Instead, because a permit is required for a display, the failure of the agency to
grant a permit by the time of the planned display effectively functions as a denial of the
application. An applicant with a complicated application or a display scheduled in a
particularly busy season will have an interest in filing a complete application well in
advance of the scheduled display, in order to give the permit authority the time it may
need to consider the application. -
You have also asked whether the Town has the authority to impose additional
permitting requirements relating to, for example, permissible locations for firing and
event safety, as a result of its statutory authority to include in the permit application
"[s]uch other information as the permit authority may deem necessary to protect
persons or property." Penal Law § 405.00(2)(g). We are of the opinion that the
authority to gather such additional information does not constitute authority for the
Town to impose any additional permitting requirements beyond those imposed by state
law.
The principal reason for this conclusion is that Penal Law § 405.00(5) expressly
supersedes "[a]ll local ordinances regulating or prohibiting the display of fireworks,"
and not merely those which are inconsistent with state law. This express statutory
language should be sufficient to answer the question, but there is more. Because, as
noted earlier, the Town is not the same entity as the "permit authority," giving the
permit authority the power to gather additional information seems an implausible and
indirect way to give the Town the power to impose additional requirements on
applicants.
Moreover, there is no necessary logical connection between the power to gather
additional information from applicants and the power to impose additional
requirements on them. It may often happen that the information required of an
applicant by statute is insufficient to enable the permit authority to make a well-informed and sound decision with respect to the requirements imposed by law. For
example, Penal Law § 405.00(2)(a) requires an applicant to provide the "name of the
body sponsoring the display and the names of the persons actually to be in charge of
the firing of the display," but the permit authority might find it helpful to have other
contact information, such as a phone number and address for the sponsoring body and
the fireworks operator, or for assistants helping the primary operator. Penal Law §
405.00(2)(b) requires an applicant to provide the date and time of day of the proposed
display, and Penal Law § 405.00(2)(e) requires the location of pre-display storage of
fireworks; the permit authority might find it helpful to have, in addition, a rain or wind
date and time, and the location of storage of fireworks in the event the display is
postponed due to wind or rain. Penal Law § 405.00(3-a) provides that a permit cannot
be issued for a fireworks display on property with a boundary within 500 yards of
property owned, leased, or operated by a horse breeder, but the statutorily-required
application information does not include a question addressing this issue, and the
permit authority might reasonably request such information. Penal Law § 405.00(4)
provides that the permit authority must require a bond or insurance policy of at least
one million dollars before issuing a permit, but the information in the application as
provided by statute does not request proof of such a bond or policy. By requesting such
information, the permit authority imposes no additional requirements, but simply
acquires the information necessary for a decision with respect to existing
requirements.
- Finally, you have asked whether the Town can use its authority to supersede
provisions of the Town Law, under Municipal Home Rule Law § 10, to implement a
permitting system and add to or deviate from the permit rules established by the State.
We are of the opinion that the Town cannot do so. Municipal Home Rule Law §
10(1)(ii)(d)(3) authorizes a town to supersede provisions of the Town Law relating to
the property, affairs or government of the town or to other matters in relation to which
and to the extent to which it is authorized to adopt local laws by section 10. This
authority to supersede provisions of the Town Law does not include the authority to
supersede provisions of the Penal Law, and thus does not include the authority to
supersede the fireworks permitting system established in the Penal Law.
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