DES MOINES, Iowa (CN) – The cracking and popping of the Fourth of July is only two weeks away, but two commercial fireworks retailers claim in court that Iowans may have a hard time buying fireworks in some cities because of overly restrictive local regulations.
For eight decades, Iowa had limited in-state sales of fireworks to small items like sparklers and snakes following a 1931 fire triggered by fireworks that destroyed 25 downtown buildings in Spencer, a city in the northwest corner of the state.
Last month, former Iowa Gov. Terry Branstad signed into a law a bill allowing firework sales again, but two out-of-state fireworks retailers say their efforts to do business in Iowa have been blocked by ordinances passed by several communities.
Both companies – Alabama-based American Promotional Events Inc.-East and Nebraska-based Bellino Fireworks – filed lawsuits last week challenging local regulations.
American Promotional – which bills itself as “the largest distributor of consumer fireworks, novelties, and sparklers in the United States” – sued the city of Des Moines in Polk County District Court on June 12, but the lawsuit was removed to federal court on Friday.
Bellino sued the cities of Ankeny, Boone, Johnston and Pleasant Hill in Des Moines federal court on Friday.
The new state law says: “A city shall not adopt an ordinance, motion, resolution, or amendment that sets standards or requirements regarding the sale or marketing of consumer merchandise that are different from, or in addition to, any requirement established by state law.”
A similar bill, also signed by Branstad, stipulates that municipalities can regulate the use, but not the sale, of fireworks and other novelties.
American Promotional and Bellino argue the actions of the certain Iowa cities – such as requiring seven-figure liability insurance coverage and other restrictions – violate the explicit language of the new state law.
Bellino says in its federal complaint that “a number of communities within the state — including the four defendants to this lawsuit — have passed or maintain illegal ordinances regulating the sale of consumer fireworks that are contrary” to the new law and to emergency rules enacted by the state fire marshal to implement the new law.
“These ordinances are invalid and preempted by state law,” the lawsuit states. “As a direct result of these impermissible ordinances, Bellino Fireworks has suffered, and continues to suffer, monetary and non-monetary damages — including irreparable harm that can only be redressed by emergency relief.”
Bellino says Pleasant Hill passed an ordinance requiring a special sales permit and evidence of $5 million aggregate insurance coverage while banning fireworks sales in temporary structures like tents. It claims those regulations are preempted by state law.
The Ankeny ordinance also requires a special-use permit and restricts fireworks sales to heavy industrial districts, all of which are outside the three sites Bellino has leased to sell fireworks before the Fourth of July, according to the complaint.
Boone limits fireworks sales to “fully enclosed retail structures,” as opposed to temporary structures Bellino planned to use, the lawsuit states, and Johnston and Pleasant Hill have also enacted similar restrictions.
The Nebraska company seeks a declaratory judgment, temporary restraining orders, and preliminary and permanent injunctions prohibiting the four cities from enforcing their fireworks ordinances.
American Promotional, meanwhile, argues that the Des Moines City Council’s ordinance passed in response to the state’s fireworks legislation effectively bans fireworks sales in the city by limiting such sales to industrial zones on the outskirts of the town.
“Through two local ordinances, the city has unlawfully restricted the sale of fireworks to the outskirt industrial-zoned sections of town, which acts as a de facto ban on the sale of fireworks in the city of Des Moines,” the lawsuit states.
The company says it will lose thousands of dollars in sales for every day it is not able to do business in the city – up to $300,000 in losses for the entire Fourth of July season.
It seeks a temporary injunction, permanent injunction and an unspecified amount of damages.
Des Moines city attorney Jeffrey Lester told Courthouse News on Monday that “the city’s zoning restrictions are rationally related to their objective of protecting the public health and safety.”
Spokespersons for the cities of Boone and Ankeny said they could not discuss pending litigation. Officials from Pleasant Hill did not immediately respond to requests for comment.
Johnston City Manager Jim Sanders told Courthouse News on Tuesday that Johnston’s original ordinance prohibiting fireworks sales, enacted before the state law was passed, was still on the books when the lawsuit was filed. On Monday, however, the Johnston City Council gave final reading to a new ordinance permitting fireworks sales.
“We think we’ve made our code consistent with state law,” he said.
Bellino is represented by Timothy Hill of the Cedar Rapids firm Bradley & Riley.
American Promotional is represented by Holly Logan with Davis, Brown, Koehn, Shors & Roberts in Des Moines.
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