OFFICIAL OPINION NO. 13-01 Power of a County to Regulate Use of Fireworks During Statutory Period

  
OFFICIAL OPINION NO. 13-01 Power of a County to Regulate Use of Fireworks During Statutory Period

 

STATE OF SOUTH DAKOTA

OFFICE OF

THE ATTORNEY GENERAL

February 8, 2013


Bob Wilcox
South Dakota Association of County Commissioners
222 East Capitol Avenue, Suite 1
Pierre, SD  57501


OFFICIAL OPINION NO. 13-01

RE: Power of a County to Regulate Use of Fireworks During
 Statutory Period

Dear Mr. Wilcox:

You have requested an official opinion from this Office:

QUESTION:  Do counties have authority under SDCL 7-8-20(18) to restrict the use and discharge of fireworks for a period beyond July 2, notwithstanding SDCL 34-37-19?

ANSWER:  Not under existing statutory law.  Under the rules of statutory construction, the more specific provisions of SDCL 34-37-19 provide the extent of county authority to regulate the discharge of fireworks.  By the limits established in this statute, county commissions have authority to regulate the discharge of fireworks only during the periods from June 20 to July 2, inclusive, and from December 28 to January 1, inclusive.

FACTS:  You have provided the following factual statement:

As is often the case in South Dakota, dry summer conditions result in drought situations thereby increasing the potential for fire danger.  In particular, this last summer of 2012, severe and extreme drought conditions were prevalent throughout South Dakota.  County commissioners around the state were concerned about fire danger resulting from the discharge of fireworks and the immediate preservation of the public health and safety of their constituents.

County commissioners acknowledge their statutory authority under SDCL 34-37-19 to prohibit or regulate the use of fireworks outside the boundaries of any municipality during the period from June 20 to July 2, inclusive, and from December 28 to January 1, inclusive.  As was the case this last summer, the fire danger extended beyond July 2.  Fireworks used or discharged July 3 through July 5 were of grave concern to many of the county commissioners.

IN RE QUESTION:

The sale and discharge of fireworks is regulated through the provisions in SDCL ch. 34-37.  SDCL 34-37-16.1 permits the discharge of fireworks from June 27 through July 5 and from December 28 through January 1.  SDCL 34-37-19 specifically addresses county regulation of fireworks and provides as follows:

Any county may, by resolution, regulate or prohibit the use of fireworks outside the boundaries of any municipality in those areas where the fire danger, as determined by use of the South Dakota grassland fire danger index published by the National Weather Service, has reached the extreme category in that county during the period from June twentieth to July second, inclusive, and during the period from December twenty-eighth to January first, inclusive.  During any such period, the county's action is suspended if the grassland fire danger index falls below the very high category and again becomes effective if the grassland fire danger index reaches the extreme category.

SDCL 7-8-20 addresses “open burning”:

 In addition to others specified by law, the board of county commissioners shall have power:

. . .

 (18) To prohibit or restrict open burning, after consultation with local fire officials and law enforcement officials, in order to protect the public health and safety.

The Legislature has not defined “open burning” in this context.  Whether the term encompasses the discharge of fireworks, however, does not need to be addressed in this opinion.[1]   The application of rules of statutory construction are determinative of the issue at hand.

The rules of statutory construction state:

The purpose of statutory construction is to discover the true intention of the law which is to be ascertained primarily from the language expressed in the statute.  The intent of the statute is determined from what the legislature said, rather than what the courts think it should have said, and the court must confine itself to the language used.
Words and phrases in a statute must be given their plain meaning and effect.  When the language of a statute is clear, certain, and unambiguous, there is no reason for construction, and the Court’s only function is to declare the meaning of the statute as clearly expressed.

Since statutes must be construed according to their intent, the intent must be determined from the statute as a whole, as well as enactments related to the same subject.  But, in construing statutes together it is presumed that the legislature did not intend an absurd or unreasonable result.  When the question is which of two enactments the legislature intended to apply to a particular situation, terms of a statute relating to a particular subject will prevail over general terms of another statute.  Moreover, it is presumed the legislature does not intend to insert surplusage in its enactments.  And, where possible, the law must be construed to give effect to all of its provisions.

U.S. West Communications, Inc. v. Public Utilities Commission, 505 N.W.2d 115, 123 (S.D. 1993) (internal citations omitted) (emphasis added); also see Martinmaas v. Engelmann, 2000 S.D. 85, ¶ 49, 612 N.W.2d 600, 611.

SDCL 7-8-20(18) is a very general statute granting a county the power to regulate open burning.  It does not contain date restrictions on the county’s authority.  On the other hand, SDCL 34-37-19 is part of a chapter expressly regulating the sale and discharge of fireworks.  This statute provides a county with a specific grant of authority to regulate fireworks in particular, under certain conditions and within certain time periods.[2]   The rules of statutory construction provide that “when the question is which of two enactments the legislature intended to apply to a situation, terms of a statute relating to a particular subject will prevail over general terms of another statute.”  U.S. West Communications, 505 N.W.2d at 123.  Thus, the terms of 34-37-19, which govern the regulation of fireworks in particular, prevail over the general terms of SDCL 7-8-20(18).

Moreover, “[w]e presume that the Legislature meant something when it included” the fire danger and date limitations in its grant of authority to counties in SDCL 34-37-19.  Wheeler v. Farmers Mutual Insurance Company, 2012 S.D. 83, ¶¶ 21-23, 824 N.W.2d 102, 109.  A conclusion that a county may regulate fireworks under SDCL 7-8-20(18) ignores the express yet limited grant of authority found in SDCL 34-37-19, and renders those limitations superfluous.  This reading of the statutes is unacceptable. 

Finally, had the Legislature intended to allow a county to regulate or prohibit the use of fireworks beyond July 2, it easily could have done so.  Wheeler, 2012 S.D. 83, ¶ 24, 824 N.W.2d at 109.  It is telling that in both 2003 and 2011, the Legislature specifically amended the date restrictions in SDCL 34-37-19, yet did not include the period from July 3 through July 5.  The lack of express regulatory authority over fireworks for this time period, given the specificity of the dates included in the statutes, is clearly intentional.

If county commissioners desire to regulate fireworks over the July Fourth festivities, legislative authority must be obtained.

Very truly yours,

 

Marty J. Jackley
Attorney General

MJJ/CME/jkp

[1]  It is worth noting that SDCL 7-8-20(18), enacted in 2001, does not reference fireworks.  This is so, even though the Legislature had previously included fireworks in similar legislation granting authority to municipalities.  See SDCL 9-33-1.

[2]  The statute was originally enacted in 1989 to permit county regulation of fireworks when certain fire danger conditions existed between June 20 and June 27.  It was amended in 2003 to expand the time frame to include the period from June 20 to July 2 inclusive, and again amended in 2011 to provide additional authority to regulate the use of fireworks in conjunction with the added sale and discharge provisions for New Year’s festivities.