Even though Salt Lake City Mayor Erin Mendenhall said she’s “very confident in our legal standing” to ban fireworks citywide, leaders of other cities including Sandy and Draper are shaking their heads, wary of lawsuit risks.
Their attorneys read Utah’s state statute on the power of cities to ban fireworks very differently, and that “confusion” is what Rep. Suzanne Harrison, D-Draper, says should push the Utah Legislature to hold a special session to address the state’s murky law on what power local leaders do or don’t have to ban fireworks.
The issue is generating a lot of debate as the legal window for setting off fireworks opens up in a week, on July 2.
“The fact that attorneys are making so many different interpretations is all the more reason to have a special session to untie the hands of cities who want to protect property and lives,” Harrison said.
Harrison pointed to legal analysis from the Legislature’s own general counsel, who in an email earlier this week pointed to the code and stated citywide bans would appear to violate the spirit of the law.
Under Utah law, cities can prohibit lighting of fireworks using a list of locations: In “mountainous, brush-covered, forest-covered, or dry grass-covered areas;” within “200 feet of waterways, trails, canyons, washes, ravines, or similar areas;” in “wildland urban interface” areas; or in “a limited area outside the hazardous areas described.”
Or cities can ban fireworks using a different section of the code, which requires officials to designate an area using certain rules and submit a written description or a map that is readily available to the public.
“Given these requirements, while many municipalities could use this provision to limit fireworks throughout a significant area of each municipality, attempting to prohibit them throughout an entire municipality would seem to violate both the letter and intent of the statutory limitations,” Peter Asplund, associate general counsel for the Office of Legislative Research and General Counsel, wrote in an email sent Monday to Nick Frederick, staff director for the Utah House Democratic Caucus.
While Utah Democrats this week called for a special session to create more flexibility for citywide bans because current law makes it too difficult, House Speaker Brad Wilson, R-Kaysville, issued a statement Monday arguing the state has “taken steps to empower local officials rather than imposing a statewide ban.”
“I do not believe it is necessary for the Legislature to hold a special session at this time,” Wilson tweeted. “Instead, it is my hope that local leaders will determine what works best in their communities and that Utahns will act reasonably and responsibly as we celebrate Independence Day and Pioneer Day together.”
Sandy City Councilman Zach Robinson said, based on how Sandy city attorneys have read the law, he believes Sandy has done what it can to limit fireworks — and banning them citywide could open the city up to lawsuits.
“We have gone as far as the statute has allowed us to go,” Robinson said.
Acknowledging that other cities like Park City and Salt Lake City — and now South Salt Lake as of Thursday — have a different interpretation of the law and banned fireworks citywide, Robinson said there is “room for improvement” in Utah’s law on fireworks.
“It’s not working,” he said.
Robinson, who has been vocal on social media calling for lawmakers to make changes to the law, said it’s not to “stoke argument,” but to “hopefully create some sort of collaborative discussion to say, ‘Look, the one-size-fits-all approach just might not be working anymore.”
Tuesday night, the Sandy City Council expanded its fire restrictions map but did not ban fireworks citywide.
Cities like West Jordan City have followed a similar path and limited the ban to only certain parts of the city even as some council members disagreed, with at least one arguing for a more extensive ban.
“I’m not a fan,” West Jordan City Council Chairman Zach Jacob posted on Facebook on Wednesday. “In my opinion, and in the opinion of 95% of the people who I heard from, which numbered in the hundreds, it’s too dry and too hot and too risky to allow fireworks anywhere we don’t have to.”
Jacob added: “It is true that state law prohibits cities from outright bans. (So if you’re in Salt Lake City and you want to light off fireworks, go for it. The ticket they give you probably won’t hold up in court). But state law does give cities more latitude than the council chose to utilize tonight.”
Draper has also enacted only a partial ban on fireworks, though its City Council on Wednesday expanded the restricted area, extending it all the way around the city’s boundaries and all the way up into adjacent foothills.
Draper Mayor Troy Walker has a firm belief that if a city enacted a citywide ban on lighting fireworks, it would open itself up to a potentially losing lawsuit, based on the way state law is currently written.
“I read it every year,” Walker said of Utah’s statute on fireworks bans. “I do not believe there is any plausible legal argument that the city can make to do a carte blanche ban.”
Though Draper’s restrictions aren’t citywide, they are extensive, Walker said, and the fire and police departments are going to aggressively enforce it.
“We will put extra cops on,” he said. “We are going to write you a freaking ticket if you light one off in a restricted area.”
Walker said if he could restrict fireworks citywide in Draper, he would.
“I would do it this year because of the dry conditions,” he said.
But first, the mayor argued Utah lawmakers need to clarify state law that local leaders have that authority.
“It’s a simple fix,” he said. “The Legislature could say the mayor and the city council can assess their drought conditions in their community, and if they feel like it’s a substantial danger, they can ban the use of fireworks based on a drought. It would be that simple.”
Walker said cities need that clarity to enforce the ban and avoid lawsuits.
“Make it clear,” he said. “Make it true. Give me carte blanche power. They always say government closest to the people ... well, I’m pretty close to the people.”