Barker Martin

Condo-HOA Blog

Explosions in the Sky

Setting off fireworks is a bright, colorful way to celebrate certain special occasions.  While most commonly associated with the 4th of July, it is not unusual for people to set off fireworks on New Year’s Eve and other holidays, as well.  When the Seahawks won their first-ever Super Bowl in 2014, the Seattle sky was peppered with exuberant blue and green explosions—a night most of us won’t soon forget.

Unfortunately, fireworks can also be dangerous, extremely loud, and malodorous.  That is why there are state laws and local ordinances that restrict the use of certain types of fireworks.  However, most law enforcement agencies in Washington assign a low level of priority towards enforcing such laws, and contacting the authorities in response to an apparent illegal use of fireworks may result in little to no response.  Boards and managers want to know: what can the association do about fireworks?

Community associations typically have broad authority to limit or prohibit the use of fireworks on association property.  Most declarations, which contain the recorded covenants that bind all owners, contain a blanket prohibition against “noxious or offensive” activity.  Declarations also usually give the association, acting through its board, the exclusive right to regulate the use of common areas, and there is likely a corresponding provision that prohibits owners from damaging or altering common areas.  An association’s rules, which the board often has the authority to establish without an association-wide vote, may also provide for quiet hours from evening until morning.

Based on these various provisions, most association’s can adopt rules to ban the use of fireworks anywhere on association property and on lots within the association.  However, the board will need to look to its enforcement procedures— often also set forth in the rules or bylaws—to determine the manner in which the ban may be enforced.  Washington law requires that any fines levied by an association must be pursuant to a published schedule adopted by the association and subject to notice and opportunity to be heard, so if your association does not have such a schedule (i.e., $100 for first offense, $200 for second offense, etc.), then the board will also need to adopt one.

One landmine to look for in the rules is whether the enforcement procedures mandate a warning letter for a first violation, with fines to be imposed for subsequent infractions.  As most, but not all, firework use occurs around the 4th of July, such a warning letter would be unlikely to cause deterrence, because the offense would only occur once a year.  If your rules do indeed contain such a provision, it would be wise for the board to carve out an exception that provides for a fine after the first incident involving fireworks.  Also, bear in mind that if the governing documents do not expressly say so, language should be added that makes the offending owner responsible for all costs associated with damage to common areas or units, including attorneys’ fees.

If you are interested in limiting or banning fireworks at your Association, do not hesitate to contact Barker Martin, where we can provide expert assistance in dealing with this explosive issue.