DES MOINES, Iowa (CN) – Days ahead of the Fourth of July, a federal judge ruled Thursday that Iowa cities can regulate where in town fireworks are sold, but cannot ban sales from tents or require city permits and additional insurance coverage for retailers.
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 claimed their efforts to do business in Iowa have been blocked by ordinances passed by several communities.
The companies – Alabama-based American Promotional Events Inc.-East and Nebraska-based Bellino Fireworks – filed lawsuits two weeks ago challenging local regulations.
American Promotional sued Des Moines and Bellino sued the cities of Ankeny, Boone, Johnston and Pleasant Hill.
Both companies sought preliminary injunctions to halt the five Iowa cities from enforcing ordinances that restrict where fireworks may be sold, require seven-figure liability insurance coverage and include other restrictions they say violate the explicit language of the new state law.
On Thursday, U.S. District Judge Rebecca Goodgame Ebinger ruled that American Promotional was unlikely to prevail on its challenge of municipal zoning restrictions limiting where fireworks may be sold in Des Moines.
She said the Iowa Legislature “could have, but chose not to” expressly limit municipal zoning powers with respect to fireworks sales.
“The Iowa legislature has decided its citizens’ celebration may include recreational fireworks for the first time in over 80 years, and the court recognizes the public’s interest in purchasing and using fireworks,” Ebinger wrote in the American Promotional ruling. “However, the ordinances do not ban the sale of consumer fireworks within the city limits. While perhaps inconvenient, fireworks are available for sale within the designated industrial districts.”
However, in a separate ruling in Bellino’s case, Judge Ebinger enjoined enforcement of requirements that fireworks sellers obtain city permits.
“These cities’ laws require Bellino, as a consumer fireworks retailer, to acquire additional city-issued permits to sell fireworks. Because these ordinances impose an additional requirement regarding Bellino’s sale of fireworks, the ordinances likely impose a ‘standard or requirement regarding the sale or marketing of consumer merchandise that are different from, or in addition to,’ requirements imposed by state law,” she wrote. “Bellino is therefore likely to succeed on the merits of its claim that [state law] expressly preempts Ankeny’s, Johnston’s, and Pleasant Hill’s ordinances requiring an additional permit to sell fireworks.”
For the same reason, Ebinger blocked Pleasant Hill’s ordinance requiring additional insurance coverage for fireworks retailers.
The judge also struck down Boone and Pleasant Hill’s requirement that fireworks be sold only in permanent structures instead of temporary ones like tents, noting that state law allows licensed retailers to sell fireworks from both permanent and temporary structures.
“Boone’s and Pleasant Hill’s ordinances ban sales from temporary structures whole-cloth; there is no additional municipal requirement that would still permit Bellino to sell from temporary structures should it comply with the municipal ordinance,” the ruling states. “The temporary-structure provisions of these laws therefore appear to be irreconcilable with Iowa law.”
Tim Coonan, a lawyer with Des Moines law firm Davis Brown representing American Promotional, told Courthouse News on Friday his client is disappointed with the ruling regarding zoning restrictions in Des Moines.
“We thought we had a good argument,” he said, adding that the company is considering its options.
Bellino’s attorney, Tim Hill with Bradley & Riley in Cedar Rapids, said the ruling in his client’s case was a win to the extent the court made clear that, other than zoning restrictions, cities cannot limit fireworks sales by banning tents and imposing additional permit and insurance requirements.
Going forward, Hill said Bellino will continue to respond in court and in the Legislature to local efforts aimed at restricting fireworks sales.