Court defuses some fireworks sales
Ruling on a technicality, judges invalidate part of Pa. law allowing higher-grade devices like Roman candles to be sold from tent stores
HARRISBURG – Kaboom! A state court has wiped out a key part of Pennsylvania’s new fireworks law that made it easier for consumers to buy bottle rockets and other exploding devices at roadside and parking lot tent stands.
The ruling in Commonwealth Court does not end fireworks sales to in-state residents, but it does make it harder to buy them.
Fireworks retailers, which challenged the law, still can sell the devices at their brick-andmortar stores.
But the ruling could blow a hole in the state’s budget — unless or until lawmakers fix the law to comply with the ruling.
The ruling affected sales of middle consumer-grade fireworks, such as Roman candles, bottle rockets and larger mortars. The Legislature permitted the sale of those devices to in-state residents as part of the 2017-18 budget that was signed into law in October 2017. That permission also came with a new 12 percent tax rate on top of the normal 6 percent sales tax consumers pay for the shooting fireworks.
Low-grade novelty products like sparklers or ground fountains that do not make explosive noises or shoot anything into the air are not affected. Novelty products have been legal in Pennsylvania for years.
The ruling stemmed from a lawsuit filed by two of the state’s largest pyrotechnic retail stores, Phantom Fireworks and Sky King. They asked the court to throw out Act 43, which was inserted into the 2017-18 tax code as part of that year’s budget.
During a court hearing in September, the companies’ lawyer, Kevin McKeon, said it cost them more than $1 million to build brick-and-mortar stores. Those stores were located along
the state’s borders and could sell only to out-of-state residents.
The new law expanded sales, allowing the brick-and-mortar companies to sell to Pennsylvania residents, and allowed their competitors to build sales tents anywhere for as little as $10,000, he said.
So you are worried about tent competition? Judge Kevin Brobson asked during the hearing. Court precedent does not allow companies to sue because of increased competition, he said.
The companies won anyway on what appears to be a technicality related to tent sales.
In permitting the tent sales, the Legislature inserted into the law that the temporary structures had to meet relatively recent safety codes established by the National Fire Protection Association. The companies argued lawmakers cannot delegate their rule-making standards to an outside entity that does not answer to state government. The court agreed.
“The General Assembly provided no policy statement or other limiting parameters, leaving the NFPA free to create, alter, or remove, as frequently or infrequently as it chooses, any standard it chooses concerning temporary structures used to sell fireworks,”
Judge Robert Simpson wrote. “Moreover, without statutory controls, NFPA drafters may be open to influence by trade groups or individuals whose interests may or may not match those of the electors.”
The problem with the tent sales, Simpson added, does not mean the entire law is illegal.
In essence, lawmakers would just have to pass a new law explaining how the state will regulate tent sales.
The companies lost on other arguments.
The companies argued the law violated the state constitution’s “single subject rule” amendment that forbids the Legislature from lumping different concepts into one bill.
The companies argued it was illegal because the law — and the new 12 percent levy it carried — was incorporated into the budgetary tax code, which included other types of taxes and explained how the state would borrow money from a tobaccosettlement account. The companies said lawmakers should have passed a separate law dealing with fireworks taxation, and the health and safety provisions of the devices and locations where they are sold.
The court disagreed. The Legislature did not violate the single subject rule, Simpson wrote, finding the new fireworks levy fits into the tax code bill, which covers all matters of tax and revenue to pay for the state’s budget.
“Stated differently, Act 43 adds a new tax rate for fireworks, distributes tax revenue from the sale of fireworks, broadens the tax base by expanding fireworks sales, and attempts to ensure that tax revenues from fireworks sales are generated safely,” Simpson wrote.
Drew Crompton, the Senate Republicans’ top lawyer, said he is happy the court agreed that the Legislature followed proper procedures in passing the law.
The box stores and the tent companies hated the law because it carried the higher tax and the lawsuit was an attempt to throw out the entire law, he added. The court ruling, he said, now means novelty tents don’t pay the higher tax because they are not permitted to sell the higher consumergrade fireworks unless the Legislature fixes the safety standards. But, Crompton said, he’s not sure consumers or the tent companies will mind not being subject to the higher levies if they are content with handling retail of novelty items only.
As of Oct. 31, the state had collected 71 percent more ($7.2 million) in fireworks taxes and licensing fees than in the previous year, Revenue Department records show.