Commonwealth Court rules key portions of 2017 fireworks law unconstitutional

By Karen Kidd | Dec 17, 2018

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HARRISBURG  — Key portions of a year-old Pennsylvania fireworks law went up in smoke this month when the Commonwealth Court ruled parts of the legislation are unconstitutional.

The state's General Assembly had delegated authority to the American Medical Association (AMA) without providing necessary safeguards when it created the law last year, according to the court's 44-page opinion filed Dec. 4.

"Without any policy statement or other limiting parameters, the AMA could create any formula, including one that would yield a loss of disability benefits for every claimant, or alternatively, for no claimant," the opinion said. 

"Moreover, it could change the formula at will, potentially with such frequency that no one could keep up with the changes, or alternatively, with such infrequency as to fall behind recent medical advances. It could add new provisions or remove existing ones."

Portions of Act 43 of October 2017 that were found unconstitutional included sections referring to temporary structures and application and annual license fees for those structures, in addition to licensing and inspections.

Judge Robert "Robin" Simpson wrote the opinion for the court's majority.

The court handed down its ruling in a lawsuit filed by two pyrotechnic retailers, Phantom Fireworks Showrooms and Sky King Fireworks, which asked that all of Act 43 be thrown out. The act included provisions for a sales tax on fireworks, including an entire chapter added to the state's tax reform code and modifying Pennsylvania's fireworks law.

"The modifications include expansion of permissible fireworks sales to consumers, imposition of a 12 percent tax (including the 6 percent sales tax) on those sales, and permitting peak season sales of fireworks in tents and other temporary structures," said the background portion of the court's decision. "Act 43 repeals the entire former Fireworks Law."

In addition to improperly delegating authority to the AMA, the General Assembly also provided no police statement "or other limiting parameters" and effectively granted the National Fire Protection Association (NFPA) full control over fireworks sales standards, the opinion said. "Moreover, without statutory controls, NFPA drafters may be open to influence by trade groups or individuals whose interests may or may not match those of the electors."

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