Reviewing the Doctrine of Preemption through the Lens of a Local Fireworks Ordinance

The Michigan Court of Appeals recently concluded that a local fireworks ordinance was preempted by state law in Sterling Heights v Bahnke, ___ Mich App ___; ___ NW2d ___ (2024)(Docket No 364264). The ordinance in question required sellers of fireworks to provide informational flyers relating to fireworks laws to buyers when selling fireworks. Michigan municipalities are able to address local concerns by enacting ordinances pursuant to their police power. Under the doctrine of preemption, however, federal or state law can preclude a municipality from enacting (or enforcing) an ordinance. There are two forms of preemption: conflict preemption and field preemption.

Conflict Preemption

The first type of preemption is conflict preemption. Conflict preemption occurs when an ordinance “directly conflicts with state law.” A direct conflict occurs when “the ordinance permits what the statute prohibits, or the ordinance prohibits what the statute permits.”

Generally, an ordinance that merely adds to the regulations that state law imposes does not give rise to a direct conflict, unless the state has acted to prevent such additional regulation by occupying the field.

Field Preemption

The second type of preemption is field preemption. “Field preemption occurs when the state has occupied the entire field of regulation in a certain area.” It is often difficult to determine if the state has “occupied the field.” Thankfully, the Michigan Supreme Court has provided a guide. First, a state law may expressly provide that the state’s authority to regulate in a specified area of the law is to be exclusive. If it is not expressly provided, the legislative history may show that preemption of a field of regulation was intended by the Legislature. A statutory scheme that completely regulates the subject matter may also support a finding of preemption even where the above factors are absent. Last, some subjects demand exclusive state regulation to achieve the state’s purpose or interest.

Other Recent Instances Involving Preemption

• Portions of a City of Grand Rapids PILOT Ordinance were deemed to be preempted by the PILOT provisions in the State Housing Development Authority Act of 1966.
• An ordinance prohibiting the sale of tobacco to persons under the age of 21 was found to be preempted by the Age of Majority Act.

Preemption in Sterling Heights v Bahnke

In Bahnke, the Code of Ordinances of the City of Sterling Heights (the “City”) required fireworks vendors to distribute a flyer to purchasers and to display information on state law regarding fireworks usage. The defendant operated a fireworks retail business, but did not comply with the City’s requirement to distribute flyers to customers. The defendant was issued a citation for violating the City Code, was found responsible by a magistrate and issued a fine of $150.

The defendant challenged the citation by arguing that the requirements of the City Code were preempted by the Michigan Fireworks Safety Act, Public Act 256 of 2011 (“Act 256”). Under Act 256, “[e]xcept as provided in [Act 256], a local unit of government shall not enact or enforce an ordinance, code, or regulation pertaining to or in any manner regulating the sale, display, storage, transportation, or distribution of fireworks regulated under this act.” MCL 28.457(1). Local governments may enact ordinances regulating the ignition, discharge and use of consumer fireworks, except for on the days listed in Act 256. MCL 28.547(2).

In Bahnke, the City argued that their fireworks ordinance constituted additional regulation that did not conflict with Act 256. The City also argued that the requirement to distribute flyers does not occur until after the sale of fireworks, and that the requirement did not regulate the “sale” of fireworks.

The Court of Appeals disagreed and concluded that the requirement to distribute flyers was preempted by Act 256. The Court noted the broad language of MCL 28.457(1), which prevents a local unit of government from enacting any “regulation pertaining to or in any manner regulating” the sale of fireworks. It concluded that the City Code was in direct conflict with the Michigan Fireworks Safety Act. Because the Court recognized a direct conflict, it did not rule on whether the ordinance had been field-preempted by Act 256.

Conclusion

Fireworks safety education is a valid public purpose, but Act 256 contains broad restrictions on the authority of local government to regulate the sale of fireworks. In this circumstance, the Court of Appeals concluded that the local ordinance was preempted by state law. A well-meaning public policy can be thwarted if it is found to be in conflict, direct or otherwise, with state law. When developing ordinances, it is important to review the proposed regulation to ensure that it is consistent with all relevant laws.

Should you have any questions regarding preemption or its effect on ordinances in your municipality, please contact our Local Government Practice Group.