By CAROL ROBIDOUX
Fireworks are OK in Derry by state statute; a phantom local ordinance accepted for years carries no legal weight.
Union Leader Correspondent
DERRY – Thanks to a newly discovered wrinkle in the town's ordinance book under the “fireworks” section, residents can assert their independence with fireworks this year, on a technicality.
“The police have been operating under the assumption it's illegal to possess and use fireworks. It seems that may not be the case. I don't know what the penalties were for those caught with fireworks, but likely they had to do with fines, not criminal consequences,” said Councilor Neil Wetherbee.
A phantom ordinance was cited by police and fire officials during the last regular Town Council meeting as the catalyst for requesting that the current council vote to ban fireworks. The council voted to table the matter, pending further discussion.
According to Capt. Vern Thomas, such an ordinance was passed by a sitting council “sometime in the 1980s.” However, police were unable to find record of the meeting minutes where the vote was taken.
That said, if it doesn't exist on paper, it doesn't exist, said resident Mike Gill, who objects to police persistence in reinforcing such an ordinance. He says the state law, which allows certain Class B consumer fireworks within outlined parameters, is comprehensive enough to protect residents of Derry from those who might shoot fireworks in a congested area, or too close to a building.
“I am opposed to the town of Derry spending my tax dollars for what I consider a nuisance ordinance, or silly attacks on my personal freedoms when this is something already covered under a state RSA,” said Gill.
He further questions that an ordinance ever did exist in town.
“I've been involved in town politics since 1981 and there's never been an ordinance for fireworks, to my knowledge. If the police and fire want to make something a matter of public policy, they need to come forth with some statistics to show why it's necessary,” Gill said. “Somehow people have to stand up and say to the powers that be, 'Don't be silly; Why rewrite what already exists on the state books?'”
Wetherbee said he is in favor of taking a look at how the town might otherwise control the display of fireworks without an outright ban, as other municipalities do.
“I had an e-mail from a resident who suggested we look at a permitting process, which makes a lot of sense to me,” Wetherbee said..
Chief Ed Garone said last week that the ordinance presented to council for approval was prompted by the annual confusion in town over fireworks.
“The only time I permit fireworks is when a person has a pyrotechnic license,” Garone said.
That position, without a written ordinance enacted by the town, carries no legal weight, said Councilor Kevin Coyle.
“Obviously there is no ordinance in Derry, otherwise, the police would not have come to us asking for us to vote one into the books,” Coyle said. “Under the state law, the only restrictions on Derry residents are those put forth by the state. And to that, I would say that the Coyle family is looking forward to displaying fireworks this year.”
Under state RSA 160:B, “Any person 21 years of age or older may display permissible fireworks on private property with the written consent of the owner, or in the owners presence, except in a municipality which has voted to prohibit display.”
State Fireworks Inspector Ken Walsh of the Divison of Fire Safety, said he's been fielding calls from several towns lately looking for clarification on how to enforce fireworks bans – or lift them – depending on the municipality.
He said he was contacted several months ago by Derry officials, but has yet to receive an update on its ordinance.
“Now I know why. It sounds like Derry needs to figure out what it wants to do, which by state law is whatever its governing body wants to do. Unless they vote otherwise, the restrictions on fireworks are limited to those restricted in the state – which include bottle rockets, firecrackers and certain sparklers,” Walsh said.
The last time the state updated its records, which are posted on line, was in 2003 or 2004, when East Derry still had an independent fire department. Based on that survey of fire chiefs, Derry is listed as “permissible” based on town ordinance and restrictions. East Derry is listed as “prohibited.”
“The only way we would change that is if town officials direct us to,” Walsh said.
By the same logic, if town law enforcement officials believe there was at one time an ordinance voted on by the council, a letter of notification would have been required for state fire safety records, which may exist in state archives.
“It would take some digging, but it would be interesting to see if we actually have such a letter dating back 20 years,” Walsh said.
What's happened in those 20 years is that the fireworks industry has gone to great measures to make fireworks safe. Having three retailers in neighboring Londonderry – including two new superstores – makes banning them a harder sell to the public than perhaps it was two decades ago.
“The fireworks industry has worked hard to get away from the stigma that fireworks are dangerous. Now you can go into a retailer and buy a big box of fireworks that might display up to 36 different charges, all safely – really it's on the borderline of what a professional would use. But as with everything, if people follow the rules, use precautions, don't set them off while drunk, keep people a safe distance away, it remains a matter of personal responsibility,” Walsh said.