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Sgt. clarifies what deputies can, can't do concerning fireworks

July 25, 2012 - Given all the folks complaining about fireworks usage in light of the new state law legalizing them, Oakland County Sheriff's Sgt. Scott Patterson felt it would be a good idea to clarify for citizens exactly what his officers can and cannot do.

Right now, in Oxford Township, sheriff's deputies have no legal ability to just go over to a person's house, write them a ticket and make them stop shooting off fireworks.

"We're law enforcement officers. We have to have a law to enforce," explained Patterson, who's commander of the township's substation.

The Michigan Fireworks Safety Act, which took effect Jan. 1, legalized the selling of consumer-grade fireworks and the unlimited use of them on the day before, of and after the 10 national holidays.

As for the other 335 days of the year, it's up to municipalities as to whether or not they choose to enact and/or enforce local ordinances regulating the ignition, discharge and use of consumer-grade fireworks.

The township's existing fireworks ordinance language is null and void because it specifically incorporated the previous state law, which was repealed and replaced by the new one. The old state law banned consumer-grade fireworks.

Township officials are working on developing a ban on fireworks during the 335 days of the year not specifically protected by state law. A first reading of this proposed ban will take place the township's 7 p.m. Wednesday, Aug. 8 meeting.

Until the township puts something on the books, there's not much the sheriff's department can actually do.

Patterson noted some citizens have the mistaken impression that deputies can simply ticket people using fireworks for disturbing the peace.

"It's not as easy as people think it is," he said. "People think you can call the police, we'll show up and we'll fix it."

In order to successfully prosecute a disturbing the peace case, Patterson said he needs residents who are willing to cooperate well beyond just making a phone call to county dispatch.

"You have to have a complainant to actually cite that person for disturbing the peace," he explained. "Your peace can't be disturbed as a police officer. It's the citizen's peace.

"You have to have someone fill out a complaint as far as a witness statement (explaining) exactly how their peace was disturbed and be willing to testify to that in court."

This holds true whether the cause is a loud party or fireworks.

The problem is most people don't want to do that; they wish to remain anonymous.

"A lot of times it's a neighbor (causing the problem) and they don't want to complain . . . because of their fear of repercussions," Patterson said. "They're worried that if they formally make a complaint and go to court, (their neighbor is) going to get mad and something's going to happen to their property or something else. They don't want to take it that far."

Unfortunately, in the absence of having a complainant willing to go the distance, all the deputy can do is warn whoever's shooting off the fireworks that they're bothering folks around them.

"We're more than happy to do that," Patterson said. "A lot of times if you go out there and talk to somebody, it can help."

But if the person makes it clear they're unwilling to cooperate or if they wait until the officer leaves, then starts shooting them off again, there's nothing else the deputy can do.

"What are you going to do? There's no teeth to (the warning)," Patterson said. "Unless you have good laws on the books and complainants who are willing to testify to these things, a lot of times you're just doing area checks and warning people."

Patterson stressed that "You have to have cooperation from the public as a complainant, not only to make a phone call, but also to give verbal and written statements, and be willing to testify in a court of law to get these things adjudicated."

Finding the person who's shooting off the fireworks in order to issue them a warning is not an easy task either as deputies drive around in marked patrol units. Even with the lights out, they still get spotted.

"It's very difficult," Patterson said. "Most of the time, they're going to see you before you see them. So, they stop doing the behavior, then they pick it up again when you leave."

It was mentioned at the July 11 township board meeting that it's illegal for residents of the Lake Villa Manufactured Home Community to shoot off fireworks because they don't own the land on which their mobile homes sit. They rent the lots.

"A person shall not ignite, discharge or use consumer fireworks on . . . the property of another person without that organization's or person's express permission to use those fireworks on those premises," according to the state law.

A violation of this section of the law is considered a state civil infraction, punishable by a fine not to exceed $500.

However, according to a July 23 memo written by Joshua J. Miller, an assistant prosecuting attorney with the Appellate Division of the Oakland County Prosecutor's Office, mobile home park residents can shoot off fireworks unless their lease specifically prohibits that activity.

Miller wrote – "Initially, then, a tenant would appear to first need to obtain express permission from his or her landlord, regardless of the type of real property leased, before he or she could ignite, discharge, or use consumer fireworks on his or her leased property. This is so because the "tenant" is living on the "property of another person," which he or she is occupying for residential purposes with the landlord's consent for an agreed upon consideration.

"However, a long-standing principle of Michigan law speaks to the contrary. In De Bruyn Produce Co v Romero . . . the Court of Appeals noted that "[a] lease gives the tenant the possession of the property leased and the exclusive use or occupation of it for all purposes not prohibited by the terms of the lease." (Emphasis added.) The leased property is, then, essentially the property of the lessee for the term of the lease, even to the exclusion of the lessor/landlord unless otherwise provided by the lease.

"Accordingly, in the situation presented here, it appears that the lessee of real property is entitled to ignite, discharge, or use consumer fireworks on his or her leased property unless the lease actually provides otherwise. Absent such a provision, the lease arguably by definition provides express permission for the lessee to use the property for "all" purposes—including igniting, discharging, or using consumer fireworks."

The trailer park issue aside, Patterson explained that in order to ticket someone for shooting fireworks off on someone else's property without the owner's express permission, his deputies would actually have to catch the person or persons in the act, which as was explained earlier isn't always easy to do.

"I have to show identification of the person who (committed) the infraction just to even write a civil infraction ticket," Patterson said.

The deputies would also need written and/or verbal statements from the property's owner indicating the person being ticketed doesn't have permission to shoot off fireworks. The owner must also be willing to testify in court.

"Otherwise, how do I know if they have permission or not to do that?" the sergeant said. "I have to show that they didn't have permission."

Patterson noted that despite what some people think, the township's existing noise ordinance is not applicable or effective to deal with fireworks complaints.

The existing ordinance concerns the maximum allowable noise levels – as measured in decibels by a device – at certain times of the day with regard to specific land use classifications. It's mostly for the noise generated by businesses such as commercial and industrial uses.

Patterson added that there is no state law concerning noise under which deputies can write a ticket.

The final issue that makes dealing with the fireworks situation so difficult is one of limited manpower. Only three deputies are assigned to the midnight shift, which runs from 11 p.m. to 7 a.m.

However, due to scheduling for training, days off, vacation time, sick days, etc., only two officers are actually on road patrol at any given time.

"Generally, 99 percent of the time, there's only two people on (during) the midnight shift," Patterson explained. "There's a minimum staffing in Oxford on all three shifts of two people."

Patterson said those two midnight deputies have to deal with every call received in the township, not just fireworks complaints.

"It's not as easy as what some people make it out to be," he said.

CJ Carnacchio is editor for The Oxford Leader. He lives in the Village of Oxford with his wife Connie and daughter Larissa. When he's not busy working on the newspaper, he enjoys cigars/pipes, Martinis/Scotch, hunting and fishing.
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