Could South Carolina’s fire marshal temporarily ban fireworks during dangerous conditions in 1994?

Plain-English summary

A legislator asked whether the state fire marshal could temporarily stop fireworks use when conditions threatened people or property. The AG distinguished an order from a regulation. He said the general enforcement statute did not itself authorize an order banning otherwise legal fireworks, and the marshal could not create that ordering power through his own regulation.

The AG read a separate fireworks statute as permitting a regulation that temporarily restricted use when the marshal had a reasonable, specific safety basis. His view assumed specified conditions in a defined geographic area and time period. He did not read the statute as allowing the marshal to override statewide fireworks law generally, and he declined to predict whether a particular proposed regulation would survive judicial review without seeing one.

Currency note

This opinion was issued in 1994. 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

Could the fire marshal simply order a temporary statewide fireworks ban?
The AG said the general enforcement provision did not clearly grant power to issue an order banning legal fireworks.

Could the marshal's own regulation supply cease-and-desist order power?
No. The letter said a regulation defining violations did not itself create legislative authority to issue such an order.

What kind of temporary fireworks restriction did the AG think possible?
He viewed a properly issued regulation as possible where specific dangerous conditions existed in a defined place and period and a restriction was needed to protect lives and property.

Did the opinion approve the text of a proposed regulation?
No. The AG said no particular proposal had been supplied and that a court's view of a specific rule was difficult to predict.

Background and statutory framework

Section 23-9-40 gave the marshal enforcement authority over existing laws and ordinances, including fire prevention and combustibles; the AG said it did not supply a general ban-order power. He looked separately to Section 23-35-40 for regulation of the use of permissible fireworks. The request mentioned a different section number in its third question, but the answer analyzed Section 23-35-40.

Citations and references

• Section 23-9-40: general enforcement authority found insufficient for a ban order.
• Section 23-35-40: fireworks regulation authority the AG read as supporting a qualified temporary rule.

Official title

Asking if the State Fire Marshall has the authority under §23-9-40, S.C. Code of Laws Ann. 1976, to order a temporary ban on the use of fireworks when the Marshal determines that conditions are a threat to personal safety or property.

Requester

The Honorable Harry R. Askins, Member of House of Representatives

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/august-30-1994/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/1994aug30askins.pdf

Original opinion text

T. TRAVIS MEDLOCK

REMBERT C. DENNIS BUILDING

ATIORNEY GENERAL

POST OFFICE BOX 11549
COWMBIA, S.C. 29211-1549
TELEPHONE: 803-734-3680
FACS~UUl:

803-253-6283

August 30, 1994

The Honorable Harry R. Askins
Member, House of Representatives
314A Blatt Building
Columbia, South Carolina 29211
Dear Representative Askins:
You have inquired as to the authority of the State Fire Marshal in several regards. The questions posed are as follows: 1.

Does the State Fire Marshal have the authority under §23-9-40, s.c. Code of Laws Ann. 1976, to order a temporary ban on the use of fireworks when the Marshal determines that conditions are a threat to personal safety or property?

Section 23-9-40, generally confers upon the State Fire Marshal enforcement authority for laws and ordinances of the State in several particulars. Two of these areas concern the prevention of fires and the use of combustibles and explosives. The Marshal's authority is limited by this statute to the enforcement of existing laws or ordinances. Typically, where a statute confers some authority upon a State official to do some act or carry out some responsibility, that authority would be specifically limited to that language contained in the enabling legislation. Edisto Aquaculture Corp. v. s.c. Wildlife and Marine Resources Dept.,
~-s.c.~-' 426 S.E.2d 753 (1993); Captain's Quarters Motor Inn v. s.c. Coastal Council, 306 s.c. 488, 413 S.E.2d 13 (1991). This statute does not clearly confer upon the State Fire Marshal the authority to issue any order or temporary ban. Other statutes confer upon the Marshal authority to take emergency measures or issue orders of an immediate nature. Section 23-9-70 allows the Marshal to order the immediate removal of a structural defect that is liable to fire and therefore a safety threat.

The Honorable Harry R. Askins
Page 2
August 30, 1994
Section 23-9-160 provides similar authority and allows the Marshal to enter or evacuate premises, and take other emergency measures. Section 23-9-180 prevents the Marshal's emergency orders so enacted from being stayed by a court prior to a hearing. Any reasonable doubts as to the existence of an implied power in an agency should be resolved against the exercise of such authority. 2 Am Jur 2d Administrative Law §62.

I

Without such an express grant of authority by the legislature to issue a ban on legal fireworks (exclusive of a properly promulgated regulation), the State Fire Marshal would not have the power to enact such a temporary order under the authority of Section 23-9-40. 2.

Does the State Fire Marshal have the authority under Regulation 19-305.8 to prevent the ignition and discharge of fireworks by issuing an order to cease and desist such ignition or discharge when conditions are such that this activity would be a threat to personal safety and property?

We do not read this regulation as authorizing the Marshal to "issue an order". This regulation defines specific instances where the use of fireworks will be deemed a violation of the Fire Marshal's rules and regulations. Indeed, the Fire Marshal would have to derive his authorization to issue an order to cease and desist from a legislative enactment. In other words, we do not see how the Marshal could use his own regulation (19-305.8) to enable him to issue an order.

3.

Does the State Fire Marshal have the authority under §23-35-140, . s.c. Code of Laws Ann., 1976, as amended, to promulgate a regulation creating a temporary ban on the use of fireworks when the Fire Marshal determines that certain conditions are a threat to personal safety and property?

Section 23-35-40 enables the State Fire Marshal to issue broad rules and regulations involving the "storage, transportation, sale and use of permissible fireworks" (Emphasis added). The Fire Marshal is given authority by this section to issue a regulation concerning these areas where it may be necessary to protect lives and property. This statute gives the State Fire Marshal this authority not withstanding other provisions of law.

The Honorable Harry R. Askins
Page 3
August 30, 1994
In our opinion the State Fire Marshal may issue a regulation ordering a temporary ban on the use of fireworks where the State Fire Marshal has a reasonable and specific basis for finding that the discharge or use of fireworks under specified conditions would be necessary to protect lives and property. Cf. Jasper County Tax Assessor v. Westvaco Coop. 305 S.C. 346, 409 S.E.2d 333 (1991); Terry v. Pratt, 258 S.C. 177, 187 S.E.2d 884 (1972). This opinion presupposes that the Fire Marshal determines that within a specified geographic area and within a enumerated time period that conditions exist which would make the discharge of fireworks dangerous to persons and property. We do not read this statute as allowing the Fire Marshal to obviate State law allowing the use and discharge of fireworks in a general manner. While we think that the State Fire Marshal does have the authority to issue regulations as described above, without the benefit of a more specific subject matter or a proposed regulation, it is difficult to predict what a court of competent jurisdiction might determine as to the legality of a certain regulation. I hope requested.

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Cameron B. Littlejohn, Jr.
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