In court filing, Seabrook justifies $7,000 fireworks license fee
June 27, 2017
By Angeljean Chiaramida | Staff Writer
SEABROOK — Town attorneys recently responded to the lawsuit filed by six local fireworks stores, claiming the town’s $7,000 fireworks license fee is too high.
The suit was filed in March by attorney Keri Marshall on behalf of Atomic Fireworks, Fantasy Fireworks, Fireworks Over the Border, Phantom Fireworks Showrooms, Rockingham Fireworks Manufacturing and Display, and Rudy Fireworks Enterprises. The plaintiffs claim that since other businesses in town, such as Walmart, pay only $25 per year to renew their annual businesses licenses, the $7,000 fee for fireworks stores is arbitrary, unreasonable, excessive, punitive, discriminatory, and, as a result, unconstitutional.
According to Marshall’s suit on behalf of her clients, the New Hampshire Supreme Court has repeatedly ruled that to be valid license fees “must bear a relation to and approximate the expense of issuing the licenses and in inspecting and regulating the business licenses.”
But, according to the rebuttal filed by town attorney Justin Pasay, of Donahue, Tucker and Ciandella, given the “unique and inherent danger” that fireworks provide, and Seabrook’s tragic history with fireworks establishments, the fee is justified.”
The $7,000 fee supports the expense it costs the town to issue, inspect and regulate fireworks businesses to protect the public’s health, safety and welfare, according to Pasay’s “Affirmative Defense.” The fireworks industry is heavily regulated, Pasay wrote, and the high local fee is also based on “the destructive history” of fireworks sales in town.
According to Pasay, Seabrook experienced a tragedy in August 1982, when a fireworks factory exploded, killing two people, injuring five more, destroying five of 10 buildings on the site, and flattening the factory itself.
“Due to the potential for similar incidents at retail fireworks stores, a threat not similarly imposed by Walmart, Lowe’s or virtually any other business in town, the town’s fire department spends a considerable amount of time each year inspecting facilities and ensuring fireworks retailers comply with state statutory and regulatory schemes,” Pasay wrote.
Further, according to Pasay, the fee is high because the town has to be prepared for another similar mishap.
Seabrook Town Meeting established issuing business licenses and for selectmen to set fees in 1991, Pasay wrote. In 2000, Town Meeting acted again, preventing any more fireworks businesses in any town zone. The action basically grandfathered all fireworks retailers in business at the time, forbidding any new ones.
According to Pasay, the significant cost of a fireworks license in Seabrook “safeguards against the possibility of undercapitalized, unsuitable and potentially unscrupulous entrepreneurs purchasing grandfathered (fireworks) businesses.”
Pasay wrote that the high fee translates into the protection of the general health and welfare of the public “by ensuring only serious, dedicated individuals own and operate retail (fireworks) establishments,” in Seabrook.
As a result, he wrote, there’s nothing arbitrary, punitive, discriminatory or unconstitutional about the $7,000 fee for a licenses to sell fireworks in Seabrook.
Pasay also stated that the plaintiffs took an unreasonably long time in filing their lawsuit. The license fee was raised from $5,000 to $7,000 in May 2014. The lag time extends beyond the statute of limitations, according to Pasay.
In upholding the $7,000 fee, Pasay’s rebuttal denies damages requested by the plaintiffs of refunding retroactively all their licensing fees and the payment of their attorney’s fee.
According to the case docket, a trial date was set for May 2018, but mediation of the suit by a third party could take place in February 2018.
Angeljean Chiaramida can be reached at 978-961-3147, at email@example.com, or follow her on Twitter @achiaramida1.