Is Tennessee's law banning fireworks sales in big counties constitutional, and would a local-option fireworks bill survive challenge?

Plain-English summary

Representative Vince Dean asked the AG two related questions about Tennessee fireworks law. The first was whether the existing ban on retail fireworks sales in counties with more than 200,000 people (the four largest, in practice) was constitutional. The second was whether a then-pending bill (SB 731 / HB 276) that would replace that population-based ban with a local-option scheme could survive constitutional challenge.

On the existing law, AG Cooper said the answer was already settled. In 1984, the Tennessee Supreme Court upheld a Knox County fireworks ban under exactly the same constitutional provision, Article I, § 8 of the Tennessee Constitution. Harwell v. Leech. The court reasoned that the legislature's distinction between large and small counties was rationally related to a legitimate purpose: greater fire and injury risk in densely populated areas. The same reasoning supports the current statewide population-trigger ban, since the activity (retail fireworks sales) does not implicate a fundamental right and fireworks retailers are not a suspect class. Rational-basis review applies, and the law passes.

The pending bill was more complicated. It would (1) repeal the population ban; (2) make all retail fireworks sales statewide illegal except where local governments opt in; (3) make sales without local opt-in (or shipments into a non-opting jurisdiction) a Class C misdemeanor; and (4) preempt private acts on fireworks. Cooper analyzed three constitutional axes: delegation of legislative power (Article II, § 3), suspension of general law (Article XI, § 8), and equal protection / due process (Article I, § 8). All three came out defensible. The delegation problem is solved by the local-option doctrine in Clark v. State ex rel. Bobo (Tenn. 1938): the law is complete on enactment, and the local choice merely concerns its operation in a particular place. The suspension problem does not apply because no statewide general-law fireworks rule would conflict. The equal-protection problem is solved because increased sales-tax revenue and varying local conditions provide a rational basis for disparate local outcomes.

The grandfather clause for existing permanent retailers was also defensible. Tennessee courts have repeatedly upheld grandfather clauses (Fleet Transp.) as protecting vested business interests, a recognized rational basis.

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.

The bill discussed (SB 731 / HB 276) and Tennessee fireworks law generally have been amended substantially since 2010. Anyone looking at Tennessee fireworks regulation today should consult the current Title 68, Chapter 104 directly rather than relying on the framework described here.

Common questions

Q: What is "rational-basis review" and why does it matter for fireworks?
A: It is the most deferential standard for evaluating a state law. A law survives if any reasonable basis exists for it (or any conceivable basis, even one the legislature did not articulate). Selling fireworks at retail is not a "fundamental right" like speech or voting, and fireworks retailers are not a "suspect class" like a racial group. So both due process and equal protection challenges to fireworks regulation fall under rational-basis review. The state almost always wins under that standard.

Q: Why did the Knox County fireworks ban matter?
A: It is the closest precedent on point. In Harwell v. Leech (Tenn. 1984), the Tennessee Supreme Court upheld a private act prohibiting fireworks sales in Knox County, reasoning that population density plus injury risk furnished a rational basis. The AG cited it as direct support for the broader population-triggered ban now in place. Same logic, same outcome.

Q: Can the legislature delegate criminal-lawmaking power to cities and counties?
A: Not entirely, no. Article II, § 3 of the Tennessee Constitution requires legislation to be complete at the time it is passed. The legislature cannot delegate to local governments the power to declare conduct criminal. State v. Toole (Tenn. 1970). But the legislature can pass a complete criminal law and give local governments the option of adopting it for their jurisdictions. That is the local-option doctrine, established in Clark v. State ex rel. Bobo (Tenn. 1938) for the manufacture of liquor and applied widely since.

Q: How does the proposed local-option fireworks bill fit the Clark framework?
A: The bill itself defines what conduct is prohibited and what penalties apply. It is complete and operative on enactment. The local choice is about whether the prohibited conduct is permitted within a particular jurisdiction, not about whether the conduct is criminal in the abstract. That fits the Clark pattern.

Q: Doesn't varying fireworks legality across the state violate equal protection?
A: Under rational-basis review, no. The court will uphold a distinction if any reasonable basis can be conceived for it. The opinion identifies two: (1) sales-tax revenue interest at the local level (citing prior AG opinion 98-076 on East Ridge), and (2) local circumstances (population density, fire-prone terrain, etc.) that justify different rules in different places. Either one is enough.

Q: What about the grandfather clause for existing fireworks retailers?
A: Tennessee courts have consistently upheld grandfather clauses against equal-protection attacks. Fleet Transp. Co. v. Tennessee Pub. Serv. Comm'n (Tenn. 1976). Protecting the vested interests of established businesses, while applying a stricter regime to newcomers, is a rational legislative choice.

Q: What's a "Class C misdemeanor" in Tennessee?
A: The lowest grade of misdemeanor, punishable by up to 30 days in jail and/or a fine up to $50 (Tenn. Code Ann. § 40-35-111). Most regulatory fireworks offenses fall in this band.

Q: Could a court reach a different conclusion than the AG predicts?
A: Possibly, but it would have to either (1) overrule Harwell, (2) classify fireworks retailing as touching a fundamental right (which would be a stretch), or (3) find no conceivable rational basis for population-based regulation (which is also a stretch). The AG's confidence is rooted in well-settled rational-basis doctrine.

Background and statutory framework

Tennessee's pre-2010 fireworks regime was a patchwork. The general rule was that retail Class C common fireworks sales required a state fire marshal permit (Tenn. Code Ann. § 68-104-102(a)), but the application required local sign-off from the chief executive of the county or city where the sales would occur (§ 68-104-105(a)). Layered on top, § 68-104-112(a)(4) made retail Class C fireworks sales a Class C misdemeanor in any county with a population greater than 200,000 according to the 1980 or any subsequent census. The combined effect: a default ban in the four largest counties, and a permit-with-local-approval system everywhere else.

The constitutional posture was settled by Harwell v. Leech (Tenn. 1984). The Tennessee Supreme Court held that a private act banning fireworks sales in Knox County did not violate Article I, § 8. The court emphasized that population differences could rationally support different fireworks rules: more people equals more fire and injury risk equals more justification for a ban. The current population-trigger ban is the same logic at a different scale, applying the trigger to all counties above the threshold rather than naming individual ones.

The pending local-option bill (SB 731 / HB 276) restructured the regime: instead of a population-triggered ban, all retail fireworks sales were illegal statewide unless the local government affirmatively authorized them. Sales (or shipments into a non-opting jurisdiction) without authorization were Class C misdemeanors. Existing permanent permittees were grandfathered. Private acts were preempted.

Cooper analyzed three constitutional concerns. First, Article II, § 3, which prohibits the legislature from delegating its criminal-lawmaking authority. The opinion catalogues the line of cases drawing the legal-test boundary: Jones v. Haynes (1968) held legislation invalid if its efficacy depends on subsequent local action; State v. Toole (1970) confirmed the legislature cannot delegate criminal-lawmaking authority; but Clark v. State ex rel. Bobo (1938) held that a law is complete on enactment if the local-option mechanism only governs operation, not the existence of the rule itself. The opinion concludes the bill fits Clark: the criminal definition and penalty are fixed at the state level, and the local opt-in determines only where the rule operates. Examples of established Tennessee local-option laws include alcohol manufacture and sale (§ 57-3-106), handguns in public parks (§ 39-17-1311(d)), pari-mutuel wagering (§ 4-36-401), wheel taxes (§ 5-8-102), metropolitan government (§ 7-2-106), and local-option sales tax (§ 67-6-705). Fireworks fits cleanly into that family.

Second, Article XI, § 8, which prohibits the legislature from suspending the general law for the benefit of a particular individual. This applies only when the challenged statute contradicts a general law of mandatory statewide application. Civil Serv. Merit Bd. v. Burson (Tenn. 1991). Cooper finds no statewide general fireworks law that the bill would contradict. Even if a contradiction were found, the legislature can survive Article XI, § 8 if a rational basis supports the distinction. Stalcup v. City of Gatlinburg (Tenn. 1978).

Third, Article I, § 8 due process and equal protection. Same rational-basis analysis. The opinion identifies a tax-revenue rational basis (recognized in prior AG opinion 98-076 on East Ridge), a local-circumstances rational basis (fireworks regulation can vary as alcohol does, per Clark), and a vested-interest rational basis for the grandfather clause (Fleet Transp. v. Tennessee Pub. Serv. Comm'n).

The combined picture is that Tennessee fireworks regulation, both the existing population-trigger ban and the proposed local-option system, sits comfortably inside well-established constitutional doctrine. Neither faces a serious constitutional vulnerability under rational-basis review.

Citations and references

Statutes and constitutional provisions:
- Tenn. Code Ann. § 68-104-101(2) (definition of Class C common fireworks)
- Tenn. Code Ann. § 68-104-102(a) (state fire marshal permit)
- Tenn. Code Ann. § 68-104-105(a) (sales-permit local approval)
- Tenn. Code Ann. §§ 68-104-112(a)(4), -114(a) (Class C misdemeanor for unauthorized sales)
- Tenn. Const. art. I, § 8 (law of the land/due process/equal protection)
- Tenn. Const. art. II, § 3 (legislation must be complete on enactment)
- Tenn. Const. art. XI, § 8 (no suspension of general law)

Cases:
- Newton v. Cox, 878 S.W.2d 105 (Tenn. 1994), Tennessee Supreme Court (Tenn. due process synonymous with federal)
- Nebbia v. New York, 291 U.S. 502 (1934), U.S. Supreme Court (rational basis articulation)
- Riggs v. Burson, 941 S.W.2d 44 (Tenn. 1997), Tennessee Supreme Court
- State v. Tester, 879 S.W.2d 823 (Tenn. 1994), Tennessee Supreme Court
- State v. Whitehead, 43 S.W.3d 921 (Tenn. Crim. App. 2000), Tennessee Court of Criminal Appeals
- Tennessee Small School Sys. v. McWherter, 851 S.W.2d 139 (Tenn. 1993), Tennessee Supreme Court
- F.S. Royster Guano Co. v. Virginia, 253 U.S. 412 (1920), U.S. Supreme Court
- Harwell v. Leech, 672 S.W.2d 761 (Tenn. 1984), Tennessee Supreme Court (Knox County fireworks ban upheld)
- Jones v. Haynes, 424 S.W.2d 197 (Tenn. 1968), Tennessee Supreme Court
- State v. Toole, 457 S.W.2d 269 (Tenn. 1970), Tennessee Supreme Court (no delegation of criminal-lawmaking)
- Clark v. State ex rel. Bobo, 113 S.W.2d 374 (Tenn. 1938), Tennessee Supreme Court (local-option framework)
- Civil Serv. Merit Bd. v. Burson, 816 S.W.2d 725 (Tenn. 1991), Tennessee Supreme Court
- Stalcup v. City of Gatlinburg, 577 S.W.2d 439 (Tenn. 1978), Tennessee Supreme Court
- Fleet Transp. Co. v. Tennessee Pub. Serv. Comm'n, 545 S.W.2d 4 (Tenn. 1976), Tennessee Supreme Court (grandfather clause upheld)

Prior AG opinion:
- Op. Tenn. Att'y Gen. 98-076 (Apr. 6, 1998) (East Ridge sales-tax rational basis)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-010.pdf

Original opinion text

January 27, 2010

Opinion No. 10-10

Constitutionality of criminal penalties for unauthorized sale, possession and use of fireworks

QUESTIONS

1. Do statutes criminalizing the sale of fireworks in counties having a population of greater than 200,000 according to the 1980 census or any subsequent census violate Article I, § 8 of the Tennessee Constitution?

2. Is pending legislation authorizing local governments to opt-in to fireworks laws that impose criminal penalties for violations thereof constitutional?

OPINIONS

1. No.

2. The pending legislation is defensible against constitutional challenges.

ANALYSIS

1. It is generally a Class C misdemeanor for any person to sell at retail any Class C common fireworks within counties having a population of greater than 200,000 according to a 1980 or subsequent census. Tenn. Code Ann. §§ 68-104-112(a)(4), -114(a). Retail sale of such fireworks is generally legal in other counties if the retailer first obtains a valid permit from the state fire marshal. Tenn. Code Ann. § 68-104-102(a). Requests for the issuance of a permanent retailer's or seasonal retailer's permit must be accompanied by a statement, signed by the chief executive officer (or designee) of the county or municipality where the fireworks are to be sold, indicating that such sales are permissible in that county or municipality. Tenn. Code Ann. § 68-104-105(a).

Article I, § 8 of the Tennessee Constitution provides "[t]hat no man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or the law of the land." This section guarantees due process of law and "is synonymous with the due process clause of the Fourteenth Amendment to the United States Constitution." Newton v. Cox, 878 S.W.2d 105, 110 (Tenn. 1994). Unless a "fundamental right" is implicated, statutory deprivations or restrictions of rights are analyzed under a "rational basis" standard. Riggs v. Burson, 941 S.W.2d 44, 51 (Tenn. 1997). In applying this standard, a statute will survive a substantive due process challenge if it "bears a reasonable relation to a proper legislative purpose and is neither arbitrary nor discriminatory." Newton, 878 S.W.2d at 110 (quoting Nebbia v. New York, 291 U.S. 502, 537 (1934)).

Article I, § 8, along with Article XI, § 8, also encompass the equal protection guarantee. State v. Tester, 879 S.W.2d 823, 827 (Tenn. 1994); State v. Whitehead, 43 S.W.3d 921, 925 (Tenn. Crim. App. 2000). The equal protection provisions of the Tennessee Constitution provide "essentially the same protection" as the equal protection clause of the Fourteenth Amendment to the United States Constitution. Id. (both quoting Tennessee Small School Sys. v. McWherter, 851 S.W.2d 139, 152 (Tenn. 1993)). These provisions guarantee that "all persons similarly circumstanced shall be treated alike." Tennessee Small School Sys., 851 S.W.2d at 153 (quoting F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)). Unless a "fundamental right" or "suspect class" is at issue, the validity of a legislative classification under an equal protection analysis is determined by a "rational basis test." Tester, 879 S.W.2d at 828. "Under this standard, if some reasonable basis can be found for the classification, or if any state of facts may reasonably be conceived to justify it, the classification will be upheld." Id. (quoting Tennessee Small School Sys., 851 S.W.2d at 153).

The retail sale of fireworks does not implicate a "fundamental right," nor do retailers of fireworks constitute a "suspect class." Consequently, statutory deprivations and legislative classifications regarding such sales do not violate Article I, § 8 as long as some rational basis justifies them. In 1984, the Tennessee Supreme Court held that a private act prohibiting the sale of fireworks in Knox County did not violate Article I, § 8. Harwell v. Leech, 672 S.W.2d 761, 764 (Tenn. 1984). At that time, fireworks sales were generally permitted in the state during certain times of the year. Id. at 762. But in upholding the ban of fireworks sales in Knox County, the Supreme Court said:

The validity of an act of the Legislature attempting a classification of the counties of the state is largely influenced by the character of the legislation. The legislation in question is clearly designed to protect the health and welfare of the citizens of Knox County, which has a very large population. The likelihood of injury resulting from the use or misuse of fireworks is greater in a thickly populated county than in a county with a small population. We are satisfied that this Act relates to a matter in respect of which a difference in population would furnish a rational basis for diversity of laws.

Id. at 764 (citations omitted). For the same reasons, Tennessee courts would likely conclude that the statutory ban of fireworks sales in counties having a population of greater than 200,000 according to a 1980 or subsequent census does not violate Article I, § 8.

2. A copy of Senate Bill 731/House Bill 276 accompanied the opinion request. The pending legislation proposes to revise the current statutory scheme of regulating consumer fireworks by local governments. In relevant part, section 7 of the bill repeals the current statutory prohibition of retail fireworks sales in counties with populations exceeding 200,000; subsection 3(a)(1) generally authorizes the legislative bodies of local governments to permit or prohibit the sale, possession and use of consumer fireworks within their respective jurisdictions, provided that local governments cannot prohibit such sale and possession by a retailer with a permit to sell consumer fireworks at a permanent location on the date the act becomes effective; subsection 3(a)(2) establishes guidelines for local governments that authorize the retail sale of consumer fireworks to follow for issuance of sales permits through the state fire marshal; subsection 3(d)(1) provides that consumer fireworks held for sale at retail in any local jurisdiction that has prohibited or not approved such sale are contraband and subject to confiscation by law enforcement officials of that jurisdiction; subsection 3(d)(2) establishes a criminal offense for shipping consumer fireworks into any local jurisdiction for purposes of possession for sale at retail, or for selling consumer fireworks in any local jurisdiction, where that jurisdiction has prohibited or not approved the sale or possession of such fireworks; and section 10 preempts the regulation of consumer fireworks by local governments by private act.

Following the bill's enactment, holders of a permanent retailer's permit on the effective date of the act may continue to sell and possess consumer fireworks wherever they are located, but all other sale, possession and use of consumer fireworks would be illegal statewide. Sale, possession and use of consumer fireworks would become permissible only in municipalities and counties that expressly authorize these activities, and then subject to the limits imposed by the local government in accordance with the terms of the pending legislation. Accordingly, the sale, possession and use of consumer fireworks could be legal in certain municipalities and counties but illegal in others, depending on the action of local legislative bodies to permit or prohibit such activities within their respective jurisdictions. The question presented is whether such pending legislation is constitutional. This question implicates delegation of legislative authority under Article II, § 3, as well as the due process and equal protection provisions of Article 1, § 8 and Article XI, § 8.

Article II, § 3 requires legislation to be complete at the time of its passage. Legislation that derives its efficacy from further action by local governments or popular vote is invalid. Jones v. Haynes, 424 S.W.2d 197, 198 (Tenn. 1968). The legislature, therefore, cannot constitutionally delegate to local governments its authority to declare certain conduct a crime and to prescribe punishment for that offense. State v. Toole, 457 S.W.2d 269, 270 (Tenn. 1970). Under the legal framework of local option law, however, the legislature is authorized to permit local governments to decide the operation and enforcement of a law of general applicability that is complete at the time of its enactment. This framework was set forth in Clark v. State ex rel. Bobo, 113 S.W.2d 374 (Tenn. 1938). In that case, the Tennessee Supreme Court upheld the constitutionality of a local option law that legalized the manufacture of liquor in counties that voted to authorize such manufacture. Id. at 381. The Supreme Court reasoned that, while the legislature may not delegate its authority to make a law, it may make a duly-enacted law operative only on the happening of a certain event, such as the county elections in that case. Id. at 376. In such instances, the law is complete upon its legislative enactment, and the local option authorized thereunder is not for or against the law but merely concerns its implementation in a particular locality. Id. at 376-377.

The pending legislation fits the Clark analysis. The bill and existing statutes determine the scope of fireworks regulation, and they proscribe certain conduct related to the sale, possession and use of consumer fireworks, as well as establish the penalties for engaging in that conduct. The pending legislation would become effective following its enactment by the General Assembly regardless of the outcome of the local government actions authorized by the bill. While the legislative body of any municipality or county may act to bring its locality within the terms of the prescribed fireworks regulation, the bill's effectiveness as a law of the State of Tennessee does not hinge on such action. Accordingly, the pending legislation is defensible against a challenge under Article II, § 3 that the General Assembly has impermissibly delegated to local governments its authority to declare illegal certain conduct related to the sale, possession and use of fireworks.

Article XI, § 8 constrains the legislature from suspending the general law of the land to benefit a particular individual or individuals without a rational basis. This constitutional prohibition is not triggered, and analysis under this section is not appropriate, unless the statute in question contradicts some general law that has mandatory state-wide application. Civil Serv. Merit Bd. v. Burson, 816 S.W.2d 725, 731 (Tenn. 1991). The "general law" subject to contradiction must be a statute. Id. Even if a contradiction between the statute in question and a general law is found to exist, the legislative act is still valid if there is a rational basis for the distinction drawn by the legislature. Stalcup v. City of Gatlinburg, 577 S.W.2d 439, 442 (Tenn. 1978). If any reason can be conceived to justify the distinction, it will be upheld. Id.

The pending legislation would repeal the current statutory ban on retail sale of fireworks in counties with populations exceeding 200,000 and would generally authorize the legislative bodies of local governments to permit or prohibit the sale, possession and use of consumer fireworks within their respective jurisdictions. Following the bill's enactment, the regulation of consumer fireworks would be by local option. This office is unable to find any statute of mandatory state-wide application whose provisions would be contradicted or undermined by the provisions of the bill. The pending legislation, therefore, does not violate Article XI, § 8. Moreover, even if a provision of the bill were found to contradict a statute of mandatory state-wide application, it may still be defensible against a constitutional challenge under Article XI, § 8. As discussed more fully below, a local government's action to increase sales tax revenues from retail fireworks sales within its jurisdiction, as well as local circumstances surrounding the sale, possession and use of consumer fireworks, could provide a rational basis for the distinction.

As discussed previously in this opinion, statutory deprivations and legislative classifications regarding consumer fireworks must survive only a "rational basis" review under Article I, § 8. See Tester, 879 S.W.2d at 828. Accordingly, the pending legislation would not violate Article I, § 8 if some reasonable basis or conceived state of facts could justify the disparate treatment of fireworks regulation among municipalities and counties, which may occur following the bill's enactment. In Op. Tenn. Att'y Gen. 98-076 (Apr. 6, 1998), this office opined that the City of East Ridge's "desire for higher sales tax revenues could serve as a constitutionally defensible rational basis" for special legislation authorizing the retail sale of fireworks within its jurisdiction. This rationale may be applied to any local government that permits the retail sale of consumer fireworks within its jurisdiction pursuant to the terms of the pending legislation. Additionally, the sale, possession and use of consumer fireworks, like that of intoxicating liquors, may be differently regarded in different localities depending on local circumstances. See Clark, 113 S.W.2d at 376. With respect to the bill's provisions that authorize permanent retailers to continue selling consumer fireworks from their current locations, Tennessee courts have upheld grandfather clauses that exempt existing businesses from newly imposed operating restrictions. Fleet Transp. Co. v. Tennessee Pub. Serv. Comm'n, 545 S.W.2d 4, 8 (Tenn. 1976). Courts have reasoned that such clauses are supported by the rational basis of protecting the vested interests of existing businesses. Id. at 7. For these reasons, the pending legislation is defensible against a challenge under Article I, § 8, though its enactment may result in legalizing the sale, possession and use of consumer fireworks in some municipalities and counties but not in others.

ROBERT E. COOPER, JR.
Attorney General and Reporter

BARRY TURNER
Deputy Attorney General

JOE SHIRLEY
Assistant Attorney General

Requested by:
Honorable Vince Dean
State Representative
107 War Memorial Building
Nashville, Tennessee 37243-0131