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2013 South Dakota Attorney General Reports and Opinions 1 (2013)

handle is hein.sag/sagsd0022 and id is 1 raw text is: OFFICIAL OPINION 13-01 Power of a County to Regulate Use of Fireworks During Statutory Period STATE OF SOUTH DAKOTA OFFICE OF THE ATTORNEY GENERAL February 8, 2013 Bob Wilcox South Dakota Association of County Commissioners 222 East Capitol Avenue, Suite 1 Pierre, SD 57501 OFFICIAL OPINION NO. 13-01 RE: Power of a County to Regulate Use of Fireworks During Statutory Period Dear Mr. Wilcox: You have requested an official opinion from this Office: QUESTION: Do counties have authority under SDCL 7-8-20(18) to restrict the use and discharge of fireworks for a period beyond July 2, notwithstanding SDCL 34-37-19? ANSWER: Not under existing statutory law. Under the rules of statutory construction, the more specific provisions of SDCL 34-37-19 provide the extent of county authority to regulate the discharge of fireworks. By the limits established in this statute, county commissions have authority to regulate the discharge of fireworks only during the periods from June 20 to July 2, inclusive, and from December 28 to January 1, inclusive. FACTS: You have provided the following factual statement: As is often the case in South Dakota, dry summer conditions result in drought situations thereby increasing the potential for fire danger. In particular, this last summer of 2012, severe and extreme drought conditions were prevalent throughout South Dakota. County commissioners around the state were concerned about fire danger resulting from the discharge of fireworks and the immediate preservation of the public health and safety of their constituents. County commissioners acknowledge their statutory authority under SDCL 34-37-19 to prohibit or regulate the use of fireworks outside the boundaries of any municipality during the period from June 20 to July 2, inclusive, and from December 28 to January 1, inclusive. As was the case this last summer, the fire danger extended beyond July 2. Fireworks used or discharged July 3 through July 5 were of grave concern to many of the county commissioners. IN RE QUESTION: The sale and discharge of fireworks is regulated through the provisions in SDCL ch. 34-37. SDCL 34-37-16.1 permits the discharge of fireworks from June 27 through July 5 and from December 28 through January 1. SDCL 34-37-19 specifically addresses county regulation of fireworks and provides as follows: Any county may, by resolution, regulate or prohibit the use of fireworks outside the boundaries of any municipality in those areas where the fire danger, as determined by use of the South Dakota grassland fire danger index published by

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