4th of July Fireworks Safety
Fireworks in Wisconsin
I. ONLY ONE CONTROLLING STATUTE -
Wis. Stat. § 167.10.
Defines Items Which Are "Fireworks" – Wis. Stat. § 167.10(1).
manufactured, processed or packaged for exploding, emitting
sparks or combustion which does not have another common use, but
does not include . . ."
exceptions are at subs. (i) through (n) (see Appendix A).
A sparkler on a
wire or wood stick not exceeding 36 inches in length that is
designed to produce audible or visible effects or to produce
audible and visible effects.
designed to spray out paper confetti or streamers and which
contains less than one-quarter grain of explosive mixture.
device that is designed to produce audible or visible effects or
audible and visible effects, and that contains less than
one-quarter grain of explosive mixture.
A device that
is designed primarily to burn pyrotechnic smoke-producing
mixtures, at a controlled rate, and that produces audible or
visible effects, or audible and visible effects.
fountain that consists of one or more tubes and that is
classified by the federal department of transportation as a
Division 1.4 explosive, as defined in 49 C.F.R. § 173.50.
A cone fountain that is
classified by the federal department of transportation as a
Division 1.4 explosive, as defined in 49 C.F.R. § 173.50.
Some exceptions include
references to certain items classified as "Division 1.4
explosive, as defined in 49 CFR 173.50" (NOTE: Not all items
that are Division 1.4 explosives are unregulated in Wisconsin.
Wisconsin Stat. § 167.10(1)(m) and (n), which reference Division
1.4 explosives, refer only to "a cylindrical fountain" and "a
consists of explosives that present a minor explosion hazard.
The explosive effects are largely confined to the package and no
projection of fragments of appreciable size or range is to be
expected. An external fire must not cause virtually
instantaneous explosion of almost the entire contents of the
49 C.F.R. § 173.50(b)(4) (Appendix
Federal law classifies
fireworks into 2 general categories, "Display Fireworks" and
"Consumer Fireworks." "Display Fireworks" are generally large
fireworks and are also classified as a "Division 1.3" explosive.
These types of fireworks were formerly known as "Special
Fireworks" or "Class B" fireworks. "Consumer Fireworks" were
formerly known as "Class C" or "common" fireworks, and are
classified as a "Division 1.4" explosive. See: 49 C.F.R. §§
173.50(b) and 173.53, 27 CFR 55.11 (Appendix B and C).
commonly sold fireworks are not legal under federal law:
M-80 salutes, silver salutes, and other large firecrackers,
aerial bombs and other fireworks designed to produce audible
effects, and including kits and components intended to produce
such fireworks … if the audible effect is produced by a charge
of more than 2 grains of pyrotechnic composition. 16 C.F.R. §
1500.17(a)(3) (Appendix D).
designed to produce audible effects, if the audible effect is
produced by a charge of more than 50 milligrams (.772 grains) of
pyrotechnic composition . . . aerial bombs, and devices that may
be confused with candy or other foods . . . including kits and
components intended to produce such fireworks. 16 C.F.R. §§
1500.17(a)(8) and 1500.86(a)(2) (Appendix D).
All fireworks devices, other
than firecrackers, including kits and components, intended to
produce such fireworks, not otherwise banned under the act, that
do not comply with the applicable requirements of part 1507 of
this chapter. 16 C.F.R. §1507.17(a)(9) (Appendix D). Various
other requirements for fireworks can be found at 16 C.F.R. §
1507 (Appendix D).
The sale of such fireworks would violate Wis. Stat. § 167.10, as
well as federal law. In addition, such products may constitute
improvised explosive devices as defined under Wis. Stat. §
941.31(2)(a). Improvised explosive device is defined as:
destructive explosive device capable of causing bodily harm,
great bodily harm, death or property damage; with some type of
explosive material and a means of detonating the explosive
material, directly, remotely, or with a timer either present or
readily capable of being inserted or attached; which may include
a pipe or similar casing, with the ends of the pipe or casing
capped, plugged or crimped, and a fuse or similar object
sticking out of the pipe or casing; and made by a person not
engaged in the legitimate manufacture or legitimate use of
explosives, or otherwise authorized by law to do so. "Improvised
explosive device" does not include ammunition for any rifle,
pistol or shotgun.
Wisconsin Stat. §
941.31(2)(b) makes it a Class E felony ($10,000 and 5 years
prison) to make, buy, sell, transport, possess, use or transfer
any improvised explosive device, or to possess materials or
components with intent to assemble any improvised explosive
Limits Sales – Wis. Stat. §
Fireworks may ONLY be
sold to persons holding VALID permits, to municipalities, and
for other very limited specific purposes.
Possession And Use Of Fireworks -
Wis. Stat. § 167.10 (3).
No possession or use of
fireworks without a user's permit from an appropriate official
of the municipality in which the possession or use is to occur.
Although it is not specifically defined this way in the statute
or any cases, it can easily be argued that this must be a VALID
permit (more on permits later).
Among other exceptions
in Wis. Stat. § 167.10(3)(b), there is now a "travelers’
exception" (created in 1996):
fireworks is allowed "while transporting the fireworks to a
city, town or village where the possession of the fireworks is
authorized by permit or ordinance."
A person is no longer
travelling if "the person remains in that city, town or village
for a period of at least 12 hours."
Out-Of-State Sales And In-State
Shipping – Wis. Stat. § 167.10(4).
A "wholesaler or jobber"
may sell fireworks "to a person outside of this state or to a
person or group granted a permit under sub. (3) (c) 1. to 7" if
they ship according to applicable laws, and ship by "common
motor carrier, contract motor carrier or private motor carrier".
Local Ordinances – Wis. Stat. §
A city, village, town or
county may enact an ordinance more strictly limiting items
defined as fireworks or prohibiting or regulating the sale,
possession or use of fireworks. Wis. Stat. § 167.10(5)(a) and
(b). However, it cannot enact an ordinance which is less
restrictive than Wis. Stat. § 167.10.
A county ordinance does not apply and may not be enforced within
any city, village or town that has enacted or enacts its own
ordinance. Wis. Stat. § 167.10(5)(d).
Enforcement – Wis. Stat. §
167.10(8) and (9).
Only a city, village or town may petition a circuit court for an
order enjoining violations of sec. 167.10 or local ordinances.
In regards to townships, Wis. Stat. § 60.24(3)(v) places this
authority in the town board chairperson.
Fireworks may be seized and held as evidence of the violation,
but only the fireworks that are the subject of a violation may
be destroyed after conviction. Wis. Stat. § 167.10(8)(b).
If fireworks are seized and no conviction results, the fireworks
"shall be returned to the owner in the same condition as they
were when seized to the extent practicable." Wis. Stat. §
Most violations (illegal sale or possession with intent to sell,
possession or use and storage) are $1000 forfeitures only. Wis.
Stat. § 167.10(9)(b). It is a misdemeanor (9 months and $10,000
fine) to violate a court order issued to enjoin violations of
Wis. Stat. § 167.10(2), (3) and (6) or a local ordinance
(regarding sale, use and storage). The only felony offenses
involve manufacturing of fireworks. Wis. Stat. § 167.10(9)(g).
Parents or guardians can be convicted for consenting to minors’
use of fireworks. The penalty is a $1000 forfeiture. Wis. Stat.
However, as noted above, possession of illegally produced
fireworks may constitute a violation of federal law as well as a
felony violation of Wis. Stat. § 941.31 (improvised explosive
device) for the making, buying, selling, transporting,
possession, use or transfer of such devices.
Storage And Handling
Wisconsin Stat. §
167.10(6) sets forth the requirements for the storage and
handling of fireworks. These requirements are as follows:
dealer or jobber may store or handle fireworks in premises
unless the premises are equipped with fire extinguishers
approved by the fire official of the municipality where the
premises are located."
"No person may
smoke where fireworks are stored or handled."
"A person who
stores or handles fireworks shall notify the fire official of
the municipality in which the fireworks are stored or handled of
the location of the fireworks."
dealer or jobber may store fireworks within 50 feet of a
"No person may store fireworks
within 50 feet of a public assemblage or place where gasoline or
volatile liquid is dispensed in quantities exceeding one
to 1996 the law provided that no person may store or sell
fireworks within 50 feet of "where gasoline is sold." The
change from "where sold" to "where dispensed" appears to
broaden the scope of the statute. For example, may sales
occur from a gas station store or display which is more than
50 feet from the pumps?
In addition, while a city, village or town does not need a
permit to use fireworks, "municipal fire and law enforcement
officials shall be notified of the proposed use of fireworks at
least 2 days in advance." Wis. Stat. § 167.10(3)(b)1.
Lastly, the Department of Commerce, as well as fire department
chiefs, have the statutory authority "at all reasonable hours
(to) enter into and upon all buildings, premises and public
thoroughfares excepting only the interior of private dwellings,
for the purpose of ascertaining and causing to be corrected any
condition liable to cause fire, or any violation of any law or
order relating to the fire hazard or to the prevention of fire."
Wis. Stat. § 101.14(1)(b) and (2)(a). Also see Wis. Stat.
II. COMMON QUESTIONS, OR
'PERMITS, PERMITS, PERMITS..."
Who Can Issue Fireworks Permits? – Wis. Stat. § 167.10(3)(a).
Only the mayor of the city, president of the village or
chairperson of the town in which the possession or use is to
occur, or an official or employee of that municipality
designated by the mayor, president or chairperson.
This duty may not be delegated to others, such as
a private business owner (but note the occasional situation
where a municipal official is also a business owner).
Who Can Permits Be Issued To? – Wis. Stat. § 167.10(3)(c).
Permits may only be issued to:
1. A public
2. A fair association;
3. An amusement park;
4. A park board;
5. A civic organization;
6. A group of resident or nonresident individuals;
7. An agricultural producer for the protection of crops from
predatory birds or animals.
In addition, subsection (h) specifies that a permit may not be
issued to a minor.
What Must A Permit Contain? – Wis. Stat. § 167.10(3)(f).
In order to be valid, a
permit must contain the name and address of the permit holder,
the date on and after which fireworks may be purchased, the kind
and quantity of fireworks which may be purchased, the date and
location of permitted use, and other special conditions
prescribed by ordinance.
Are There Any Other Types Of Permits Which Might Do The Trick?
18 U.S.C. §§ 841-848 regulate the interstate importing,
manufacturing, distributing and storing of explosive materials.
18 U.S.C. § 843 provides for a license issued by the U.S.
Department of Transportation to engage in these activities. Some
of the larger "legitimate" fireworks merchants might have one of
these federal licenses. Such a license eliminates their need to
have a local possession license. City of Wisconsin Dells v.
Dells Fireworks, 197 Wis.2d 1, 19, 539 N.W.2d 916 (Ct. App.
1995) (Appendix E). However, the federal license only allows the
holder to possess and use fireworks, or sell to other federal
licensees. It does not allow a federal license holder to sell to
persons who do not have a local permit. City of Wisconsin
Dells v. Dells Fireworks, 197 Wis.2d at 19.
A local ordinance could require a federal license holder to also
obtain a local permit.
What Does A Permit Under State Law Allow?
A permit can allow its holder to:
Transport those fireworks
to a location specified in permit:
Remaining in a "non-permitted" city, town or village
more than 12 hours means you are no longer
person is not on a reasonably direct route between the
location of purchase and the location of the permit, it
can probably also be argued that they are not really
transporting to the permitted location.
Use of Fireworks:
What About This Stand That Is "Selling" Permits?
It doesn’t work.
Upon closer examination, fireworks stands on Wisconsin have not
generally been selling the actual permits themselves. Several
"organizations" (see Wis. Stat. § 167.10(3)(c)6.) may have
obtained permits from authorized entities, and then the
fireworks dealers have purported to sell "memberships" into the
organization holding the fireworks permit to individuals wishing
to purchase fireworks. Their argument has been that this allows
the member to take advantage of the group’s permit for their own
DOJ objected this practice for many years. In a letter dated
June 9, 1987, Assistant Attorney General Daniel A. Milan
expressed doubts about the validity of one organization's permit
scheme. He argued that the intent of Wis. Stat. § 167.10 was to
permit the use of fireworks by groups of people at a specific
place and time if authorized by the local municipality.
Commenting on one organizations practices, he stated that "this
is a scheme to facilitate the sale of fireworks rather than to
promote Club functions."
More recently, a court has finally decided this issue, holding
that "[u]nder § 167.10(3)(c)6, STATS., the permit is issued to a
group, not to the individuals that make up the group. Therefore,
it is the group, W[isconsin] F[ireworks] A[ssociation], which
holds the permit, not the members of the WFA." Dells
Fireworks, 197 Wis. 2d at 20. Since the permits made clear
that the individuals had no ability to exercise any control over
the organization itself, they were not acting on behalf of the
organization. The court went on to say that:
an agricultural producer, user permits may not be issued to
individuals. These requirements give the issuing
municipality the ability to carefully control the use and
possession of fireworks within its boundaries. If any
individual who pays two dollars can obtain a permit without
the municipality even knowing about it, there is little
point to any of these sale and use requirements. It is clear
from the WFA membership form and the undisputed
circumstances of the membership purchases, that WFA is not
exercising any control over the purchase or use of fireworks
by its members.
197 Wis. 2d at 21.
Can They Sell To People From Other States Who Are In Wisconsin?
A wholesaler or "jobber" can sell fireworks "to a person outside
of this state." Wis. Stat. § 167.10(4). However, that language
doesn’t provide a right to sell to other states’ residents while
they are in this state. State v. Victory Fireworks, 230
Wis. 2d 721, 602 N.W.2d 128 (Ct. App. 1999), petition for
review denied, 4/26/2000 (Appendix F). Also see
Cornellier Fireworks Co. v. St. Croix County, 119 Wis. 2d
44, 349 N.W.2d 721 (Ct. App. 1984) (Appendix G).
In State v. Victory Fireworks, the state charged the
defendant with multiple violations of Wis. Stat. 167.10 alleging
unlawful sales to out of state residents. The defendant had the
purchasers sign a document entitled "Out of State Fireworks
Purchase Contract and Straight Bill of Lading" which claimed
that title to the fireworks would only pass when the fireworks
entered another state. The purchasers where then allowed to buy
restricted fireworks. The fireworks were packaged in a sealed
box or bag with a label which reflected, among other things,
that it was illegal to open and use the fireworks in Wisconsin.
The trial court dismissed the charges on the ground that Wis.
Stat. § 167.10(4) allowed sales to non-residents.
The Court of Appeals rejected this argument based the plain
language of the statute. The court held that Wis. Stat. §
167.10(4) only allows sales to purchasers who are actually
outside of Wisconsin and not merely to non-residents. State
v. Victory Fireworks, 230 Wis. 2d at 725.
When the seller ships the fireworks they must be packaged and
shipped in accordance with applicable state and federal law by,
"common motor carrier, contract motor carrier or private motor
carrier" (as defined at Wis. Stat. § 194.01 (1), (2) and (11)).
This means the fireworks cannot be put into private automobiles
for "shipment" out of state. In State v. Victory Fireworks,
the Court of Appeals stated that it did not have to reach the
question of whether the out of state purchaser's vehicles fit
the definition of an appropriate carrier as that issue did not
effect whether the sale itself was unlawful. State v. Victory
Fireworks, 230 Wis. 2d at 726.
III. OTHER STATUTES
Consideration should also be given to the effect other statutes
may have on fireworks enforcement. For example, all persons or
businesses who are doing business in Wisconsin must charge and
collect state sales taxes. In order to do so they must first
obtain a sales tax permit. Wis. Stat. § 77.52(7) and (8). A
special permit is available for businesses who are temporarily
selling in Wisconsin. Wis. Stat. § 77.52(19). These statutory
requirements raise several issues.
First, Wis. Stat. § 77.61(11) provides:
village or town clerk or other official whose duty it is to
issue licenses or permits to engage in a business involving
the sale at retail of tangible personal property subject to
tax under this subchapter, or the furnishing of services so
subject to tax, shall, before issuing such license or
permit, require proof that the person to whom such license
or permit is to be issued is the holder of a seller's permit
as required by this subchapter or has been informed by an
employe of the department that the department will issue a
seller's permit to that person.
Therefore, this statute allows governmental officials to deny
the issuance of any license to a business which does not have
the necessary sales tax permit.
Second, Wis. Stat. § 77.52(12) provides that anyone who operates
a business without a permanent or temporary sales tax permit,
including each officer of a corporation, partnership, limited
liability company member or any other person authorized to act
on behalf of a seller "is guilty of a misdemeanor." Other crimes
for failing to file sales tax returns, evading taxes or stealing
sales taxes are set forth in Wis. Stat. §§ 77.60 and 77.61