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Business Observer Friday, Nov. 21, 2003 18 years ago

Fireworks Sales Halted

Stores who sell fireworks say a new Sarasota County ordinance will shut them down. Commissioners contend the sales are illegal.

Fireworks Sales Halted

Stores who sell fireworks say a new Sarasota County ordinance will shut them down. Commissioners contend the sales are illegal.

By Sean Roth

Real Estate Editor

The Sarasota County Commission effectively put the county's two fireworks stores, Sky King Fireworks and Discount Fireworks, out of business Nov. 12 when it passed an ordinance requiring firework buyers to obtain a county-issued permit.

The commission contends that the stores are willfully violating Florida law and legal fireworks operators will be unaffected. But critics of the measure say the stores are obeying the laws and that the ordinance is a restraint of their commercial rights.

The heart of the debate focuses on the more than 60-year-old Florida statute Chapter 791, which defines how fireworks can be sold legally. In general, fireworks - excluding sparklers and noisemakers - cannot be sold to the general public, except for ceremonial or agricultural uses.

To stay in business, the fireworks industry had developed a waiver for customers to sign certifying they are at least 18 and that they plan to use the fireworks legally.

Propelled by a deluge of complaints of fireworks usage and following the lead of other Florida counties, the Sarasota commission decided to examine the issue.

"We had so many complaints last Fourth of July," Commissioner David Mills says. "It rained a lot and there was a delay in getting the (municipal) fireworks started. We were on a balcony looking down on the city, and it looked like downtown Baghdad, with fireworks going off everywhere. It was made pretty clear to me (by the county staff) that the fireworks being sold in the county were illegal."

Sarasota County sheriff's officials told the commission the department was finding it difficult to enforce the rules against fireworks because of mixed messages.

"People would ask, 'Why can we purchase the products locally when it is illegal for us to use it?'" says Maj. Kevin Gooding, commander of the Sarasota sheriff's north division. "We feel that the businesses knew full well that the fireworks were not being legally used."

Fire and sheriff's officials suggested the commission pass a law similar to those passed in Pinellas and Polk counties, which require fireworks purchasers to obtain a permit from the county.

"This was the preferred mechanism," Commissioner Jon Thaxton says. "I think the best testimony came from this really nice guy (in the audience). This is a guy I would trust to make a deposit in my checking account. He said that he had bought fireworks and enjoyed using the fireworks. When we explained to him that what he was doing was illegal; he was just shocked. These people (business owners) clearly knew they (the buyers) were breaking the state law, and they are really not informing people. This (ordinance) takes away the element of uncertainty. It should stem the tide."

Bill Merrill, a partner with the Sarasota's Icard, Merrill, Cullis, Timm, Furen & Ginsburg, who represents Sky King Fireworks, argues that the new ordinance creates too large of a burden for fireworks customers. "We feel this has a chilling affect on the entire process," he says. And according to the most recent legal precedent, the stores are operating within the law. In 2002, the Third District Court of Appeal, in the case of Florida vs. John Miketa, found that fireworks stores were not legally bound to verify the accuracy of the waivers signed by customers. "There was no verification requirement in the legislation," Merrill says. "They have no procedural duty. In other Florida statutes the legislature specifically sets out what is required, the court found if there are mandatory verification requirements; they should be placed in the legislation. From a legal standpoint my clients are in the right."

Merrill says that there is a perception problem with fireworks: The explosives aren't nearly as dangerous as portrayed. Quoting national statistics, he says that 0.3% of all injuries are firework related. "Fewer children are harmed by fireworks than by cooking ranges, bikes and fishing. Plus, there is the time of year when fireworks are popular. It's the holidays. Alcohol may be involved."

To address the complaints, the retail owners also were willing to make concessions. "We suggested charging an annual fee to sellers to pay for litter cleanup or to pay for off-duty police officers," Merrill says. "We suggested fire safety classes, hours of operation restrictions and designated areas where they can be fired off."

Ultimately, the commission felt compelled to pass the permitting ordinance because of the existing statute.

"We would be turning a blind eye to an illegal act," says Commissioner Shannon Staub.

Commissioner Paul Mercier agrees. "We didn't have much room," he says. "We have to comply with the state requirements. I told them they have to reexamine their marketing plan and make sure you sell to people that are exempt under the statute. Maybe they could have training sessions ... similar to gun classes. Now they have to make certain the people they are selling to are legal. I'll admit this is probably going to drive the industry underground. Now it becomes an enforcement issue."

William Micco, co-owner of Sky King Fireworks, sees the ordinance as a lose-lose for the county. His company moved into the area about two-and-a-half years ago, paying a reported $1.6 million to buy land on Tamiami Trail and build a new fully sprinklered facility. The store produced sales of about $1.5 million annually and employed about 60 people full- and part-time. "They should be using more of a scalpel rather than a butcher knife," Micco says. "This is not going to serve the reason it was adopted. People are just going to drive to Port Charlotte or buy their fireworks from the Internet."

Thaxton defends the commission stance. "This was not an issue where the Sarasota County Commission was attacking a business or industry," he says. "We appreciate it all. But if we found any business that was facilitating an illegal activity we would do it again, especially if it poses a health and safety threat."

Ron Carabbia, president and CEO of Sky King Fireworks, says that he will challenge the ordinance and also plans to lobby the state for a change to the state statute. "They don't seem to realize that guns are not as regulated as fireworks are now," he says. "In my heart of hearts I don't think this is going the change the enforcement any. People are just going to get their fireworks somewhere else."

Representatives from Discount Fireworks were not available for comment.

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