Summary
holding that portion of county ordinance that banned the sales of sparklers was unconstitutional because it directly conflicted with section 791.01, Fla. Stat., which specifically approved the sale of sparkers
Summary of this case from Phantom of Brevard, Inc. v. Brevard CountyOpinion
No. 73-897.
March 26, 1974.
Appeal from the Circuit Court, Dade County, General Jurisdiction Division, David Popper, J.
Stuart Simon, County Atty., and Steven Lee, Asst. County Atty., for appellant.
Ullman, Kimler Entin, Miami, for appellee.
Before BARKDULL, C.J., and CARROLL and HENDRY, JJ.
By this appeal, the County questions the correctness of a final judgment holding null and void those portions of a County ordinance banning the sale of "sparklers". Section 791.01, Fla. Stat., F.S.A., defining fireworks, has a specific exemption as to sparklers and provides in part that they may be offered for sale.
" 791.01 Fireworks defined
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"(2) The term `fireworks' shall not include sparklers, toy pistols, toy canes, toy guns, or other devices in which paper caps containing twenty-five hundredths grains or less of explosive compound are used, providing they are so constructed that the hand cannot come in contact with the cap when in place for the explosion, and toy pistol paper caps which contain less than twenty hundredths grains of explosive mixture, the sale and use of which shall be permitted at all times."
The Supreme Court of Florida has recently had occasion to review the propriety of a municipality attempting to enact an ordinance prohibiting activities authorized by a general State statute. Rinzler v. Carson, Fla. 1972, 262 So.2d 661. Examining the ordinance under attack in light of the cited statute, the sale of sparklers having been specifically approved by the Legislature of this State, we believe the trial court was correct in the final judgment declaring so much of the County's fireworks ordinance which prohibits such sale to be unconstitutional.
County ordinances under Home Rule Charter are to be treated the same as municipal ordinances. See: Applied Research Laboratories of Florida, Inc. v. Homer, Fla.App. 1971, 249 So.2d 732; Delano v. Dade County, Fla. 1973, 287 So.2d 288.
Therefore, the final judgment here under review be and the same is hereby affirmed.
Affirmed.