Request By:
Thomas A. Nanney, Esq.
313 Main Street
Fulton, Kentucky 42041
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter concerning the retail sales of fireworks pursuant to KRS 227.700 to 227.750 and KRS 227.990(4).
A fireworks dealer has raised the question of whether he may lawfully set up a fireworks stand and sell fireworks at retail in the City of Fulton. He apparently intends to sell only those kinds of fireworks described in KRS 227.702(1) and KRS 227.704.
You state that there appears to be a conflict between KRS 227.708, which would apparently allow retail sales of certain designated types of fireworks, and KRS 227.710 which appears to forbid the retail sale of fireworks. Your specific question is what kinds of fireworks, if any, may be sold at retail pursuant to the statutory provisions set forth in paragraph one of this letter.
Statutes pertaining to the sale or use of fireworks have been in existence for many years. Prior to July 15, 1980 the fireworks statutes were found in KRS 438.100 to 438.143 and what was then KRS 438.110 stated in part that "No person shall sell at retail, or offer, advertise or expose for sale at retail, or use or explode, any fireworks within this state, except gold star producing sparklers, which contain no magnesium or chlorate, toy snakes which contain no mercury, smoke novelties and party novelties, which contain less than twenty-five hundredths (.25) of a grain of explosive mixture. . . ." That same statute also required that a permit be obtained in connection with a public display of fireworks. At this point, as you can observe, there were certain enumerated exceptions to the general ban on selling fireworks at retail.
The 1980 session of the General Assembly enacted KRS 227.700 to 227.750 and KRS 227.990(4) dealing with fireworks. These statutes became effective July 15, 1980 and KRS 438.100 to 438.143 were repealed as of July 15, 1980. KRS 227.710 at that time provided in part that, "No person shall sell at retail, or offer, advertise or expose for sale at retail, possess, or use or explode any fireworks within this state, except gold star producing sparklers, which contain no magnesium or chlorate, toy snakes which contain no mercury, smoke novelties and party novelties, which contain less than twenty-five hundredths of a grain of explosive mixture. . . ." This statute also required that a permit be obtained in connection with a public display of fireworks. Thus, the newly numbered 1980 statute retained almost verbatim the enumerated exceptions to the general ban on selling fireworks at retail which had been set forth in KRS 438.110.
The 1982 session of the General Assembly dealt extensively with the statutory provisions pertaining to fireworks. Not only was KRS 227.710 amended but new sections were added, including KRS 227.702, 227.704, 227.706 and 227.708. KRS 227.710 now begins with the sentence, "No person; firm, copartnership, or corporation shall offer for sale, expose for sale, sell at retail, keep with intent to sell, possess, use, or explode any fireworks, except as hereinafter provided." None of the exceptions now listed in that particular statute deal with retail sales of fireworks. Such matters as a required permit for public displays of fireworks, sales at wholesale of fireworks, and the sale and use of signaling devices and distress signals are covered. If KRS 227.710 is isolated and considered by itself it does now appear that retail sales of any kind of fireworks are prohibited.
However, as we will attempt to demonstrate, the statutory sections dealing with fireworks still authorize the retail sale of certain specific types of fireworks and the authorized list now may be more extensive than was previously the case. "Where there is an apparent conflict between statutes or sections thereof, it is the duty of the court to try to harmonize the interpretation of the law so as to give effect to both sections or statutes if possible,"
Ledford v. Faulkner, Ky., 661 S.W.2d 475 (1983). While KRS 227.710 no longer authorizes the sale of any kind of fireworks at retail the General Assembly has not prohibited the retail sale of fireworks but, rather, has placed the authorization for the retail sale of fireworks in other statutory sections. It should have changed the wording in the first sentence of KRS 227.710 when it did so by removing any reference to retail sales.
The key statutory provision as to whether fireworks may legally be sold at retail and what kinds may be sold is KRS 227.708, enacted in 1982. Section (1) of KRS 227.708 states that the items described in KRS 227.702(1) are legal for retail sale if all applicable federal and state requirements pertaining thereto are met. Section (3) of KRS 227.708 states that the items described in KRS 227.704 are legal for retail sale provided all applicable federal and state requirements with respect thereto are met. To adopt the view that KRS 227.710 prohibits the sale of any kind of fireworks at retail would, in effect, abrogate the enactment of KRS 227.708(1) and (3).
Section (2) of KRS 227.708 provides that the items described in KRS 227.702(2) and (3) and subsections (2) and (3) of KRS 227.706 are not legal for retail sale but are legal under permits granted pursuant to KRS 227.710 for the purposes specified for public displays and may be sold at wholesale as provided. This is another indication that KRS 227.710 is no longer intended to cover retail sales of fireworks but is limited to public displays of fireworks, sale at wholesale of fireworks and special uses of fireworks devices. It should be noted that one minor error appears in KRS 227.708(2) as it is presently codified. It refers to subsections (2) and (3) of 227.706 when in fact, there are no such subsections of that statute. See 1982 Acts, ch. 436, § 5, for the provisions of the original bill.
Thus, in conclusion, effect can be given to both KRS 227.710 and 227.708, and the apparent conflict betwen them can be resolved, if we adopt the interpretation that KRS 227.710 no longer deals with the retail sale of fireworks but is limited to the requirement of a permit for the public display of fireworks, the sale at wholesale of fireworks and special uses of fireworks devices. The authority for the retail sale of fireworks has been transferred to KRS 227.708 and that statute permits the items described in KRS 227.702(1) and the items described in KRS 227.704 to be legally sold at retail if all applicable federal and state requirements with respect thereto are met.