Friday, April 2, 2010
No Burn Baby, No Burn
Austin court sides with county
By Chris Cobb - The Herald-Zeitung
Comal County officials celebrated a legal victory this week bringing an end to a 2005 lawsuit brought against them by a fireworks retailer.
A state appellate court on Wednesday upheld the county’s decision to ban fireworks to prevent potential fires over New Year’s in late 2005.
Mr. W Fireworks filed a lawsuit against the county on Dec. 31, 2005, a day after severe drought prompted then-acting county judge Jan Kennady to declare an emergency fireworks ban over the holiday. The lawsuit claimed the county overstepped its authority in declaring an all-out ban.
A local district judge disagreed, ruling in favor of the county in 2005. The Third District Texas Court of Appeals agreed with the local decision on Thursday.
“The county was victorious in these efforts, and it protected the lives and safety of the community,” District Attorney Geoff Barr told Commissioners’ Court on Thursday.
At the time, Gov. Rick Perry already had declared the drought a disaster, and county officials said the high fire danger outweighed the ban’s potential impact on businesses.
“This wasn’t an effort to take away private property rights, but to protect the citizenry,” Barr said.
Mr. W sells fireworks in Texas, Oklahoma and New Mexico.
The court’s ruling sided with the county, largely because Mr. W failed to address the claims in its lawsuit to the proper governmental bodies.
The fireworks vendor had attempted to prove that the Governor’s order, the Texas Disaster Act, the county’s emergency order and the county’s emergency plan were too far-reaching, or had violated the U.S. or Texas constitutions.
But, although it specified them in the suit, Mr. W failed to name either the state or the governor’s office as an official party being sued. As a result, most of its claims were thrown out for failing to do so.
Since 2003, the county has instated several partial or complete holiday bans on fireworks, including this past Fourth of July.