By Mark Waite

By the time a protest of a conditional use permit for a fireworks tent on Highway 160 reached Nye County commissioners Tuesday, it was already a moot point.

Commissioner Joni Eastley said the protest of a conditional use permit handed out May 9 by the Pahrump Regional Planning Commission allowing Ninja Fireworks, doing business as Blackjack Fireworks, expired at midnight the next day, July 4.

But District Attorney Brian Kunzi pledged to bring a revised ordinance back before the commission.

“What this situation calls out for is a comprehensive look and I think we really need to address what goes on this particular season. By changing the ordinance, we can address some of the issues of how advisable is it to put in the middle of a desert high explosive fireworks with really no fire suppression. There are obviously some very serious safety issues I think from a policy standpoint that have been expressed to me,” Kunzi said.

The ordinance needs to be changed clarifying the transfer of permits and how one fireworks company allows someone else to sell fireworks, he said.

“This is an issue I have to deal with on a law enforcement side, not necessarily from board action,” Kunzi told commissioners.

Kunzi told Ninja Fireworks attorney Jeffrey Shaner on June 19 that he considered the sale of fireworks at 4551 S. Highway 160 to be a violation of the permit issued to the company on Oct. 18, 2011, as Ninja Fireworks is permitted to sell fireworks out of a store at 1181 S. Highway 160. The only entity that can sell at the other location is Blackjack Fireworks LLC, which has a non-transferrable permit, he said.

“Selling fireworks at any location other than the permitted business location is unlawful and subjects any person that sells fireworks in violation thereof to criminal prosecution,” Kunzi wrote. “Please understand that I take this matter very seriously. All persons involved in the sale of fireworks at 4551 S. Highway 160, Pahrump, Nevada, to include business officers responsible for this activity and sales staff would be exposed to criminal prosecution. Every transaction done in violation of the code could constitute a separate criminal violation.

“The sale of fireworks in Nye County is a privileged form of business and is subject to a great deal of scrutiny. Your client has been granted a special privilege to sell a product that is not available in any other county in Nevada. Strict compliance with the terms of the code is expected,” Kunzi wrote.

The conditional use permit approved by the RPC May 9, allowed tent sales between 7 a.m. and midnight from June 1 to July 4.

Nevada District 36 Assemblyman Ed Goedhart filed the protest within the 30-day protest period, but not until June 5. Nye County Planning Director Steve Osborne said notices then had to be sent to property owners living within 300 feet, making it too late to put the protest on the June 19 regular county commissioners’ agenda.

Goedhart said the RPC erred in granting the permit by restoring a previously-abandoned grandfathered use. The site was formerly used to store containers of fireworks. The RPC also didn’t comply with provisions in the Nye County Code governing uses for businesses not grandfathered into the regulations, like International Building Code and International Fire Code regulations dealing with sale of fireworks, he wrote in his protest.

Shaner, representing the applicant, said Blackjack Fireworks complied with all the conditions that were required. He urged a reporter to visit the tent, which he said had numerous fire extinguishers, didn’t have merchandise piled up and had more than adequate spacing.

In a June 21 response to the DA, Shaner said Blackjack Fireworks chose to utilize its permit to sell fireworks at 4551 S. Highway 160 and engaged the services of Ninja Fireworks because Ninja had the knowledge and experience. Ninja Fireworks is owned by Anthony McKoy, Blackjack Fireworks is owned by the estate of his late father, Frank McCoy Sr. Ninja Fireworks filed to use the name Blackjack Fireworks by filing a Certificate of Business Fictitious Firm Name with the Fifth Judicial Court in 2009, Shaner wrote.

The applicant for the conditional use permit was Andrew Noll of Wells Fargo Bank, who is a managing member of Blackjack Fireworks.

Blackjack Fireworks won a writ of mandamus last year stipulating it sold fireworks at both locations. A key paragraph in the writ states: “The fireworks permit issued to Ninja Fireworks Company LLC shall not be used by Nye County as a basis to revoke, cancel, terminate, deny reapplication or otherwise restrict the business activities of Blackjack Fireworks LLC at the locations identified on the permit.”

Commissioner Dan Schinhofen fought to make a statement at the commissioner’s meeting, despite objections from Eastley, who urged Schinhofen, “Why don’t you discuss those with the district attorney outside the meeting?”

But Schinhofen got out a public statement.

“If we have rules, they have to apply to everyone. The last business had to put in sprinklers and this one can put up a tent and that bothered me greatly,” Schinhofen said.

He was referring to Red Apple Fireworks, which was given a fireworks permit a year ago to open a store at 3610 S. Highway 160.

The RPC approved the conditional use permit 5-0. The special conditions of approval required an inspection before opening by Pahrump Valley Fire and Rescue Service and for the tent to be constructed of a flame resistant material.

In a follow-up letter to the commission, Shaner said, “Mr. Kunzi engaged in making threats in the form of criminal prosecution, not only against the applicant and its business officer, but also against attorneys for the applicant’s attorney.”

Shaner wrote neither Ninja Fireworks nor Blackjack Fireworks was provided a copy of the appeal. Goedhart also didn’t specify how he was aggrieved by the permit, Shaner said.

Shaner said his client didn’t request to erect a permanent structure, therefore requirements to install fire sprinklers didn’t apply.