Opn. No.
Background
- Informal Opinion on fireworks permit procedures under Penal Law §§ 270.00 and 405.00.
- Penal 270 prohibits sale, possession, or use of fireworks without a permit; Penal 405 governs issuance of permits for displays.
- Penal 405 designates a local 'permit authority' to issue permits and sets application/permit contents, timing, and supersession of local ordinances.
- Questions address (i) whether issuing a permit is discretionary or ministerial, (ii) five-day review deadline, (iii) authority to add permit requirements beyond state law, (iv) ability to supersede Town Law via Home Rule with respect to fireworks permits.
- Attorney General concludes: issuance is discretionary; five-day review is not a hard deadline; extra information gathering cannot add new permit requirements beyond state law; town cannot supersede Penal Law under Home Rule.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is issuing a fireworks display permit discretionary or ministerial? | Town argues discretion allowed | State defines permit as discretionary | Discretionary decision to grant/deny |
| Must permit review occur within five days? | Five-day clause mandates action | No automatic action; failure to act functions as denial | Not mandated; timing is not compulsory |
| May Town impose additional permitting requirements beyond state law? | Town may require additional safety/location info | Cannot add requirements beyond Penal Law | No additional permitting requirements allowed |
| Can Town supersede Penal Law via Home Rule to alter fireworks permitting? | Town authority to tailor local rules | Home Rule cannot override Penal Law | Cannot supersede Penal Law; Home Rule ineffective here |
Key Cases Cited
- Matter of Barton Trucking Corp. v. O'Connell, 7 N.Y.2d 299 (1959) (power to grant a license implies power to withhold for good cause)
- People ex rel. Schwab v. Grant, 81 Sickels 473 (1891) (discretion to grant license implied by privilege)
- Maytum v. Nelson, 53 A.D.2d 221 (4th Dep't 1976) (license discretion and public safety)
- Rill v. Chiarella, 50 Misc. 2d 105 (1966) (statutory review of displays contemplates careful review)
- Schwab, 81 Sickels at 481 (1891) (license discretion implied by need for consent)