Attorney Gay Gueringer filed papers with the Guadalupe County District Clerk's Office late Friday afternoon seeking a temporary restraining order that would prohibit the county from interfering with operation of the fireworks stands and a declaration by 2nd 25th Judicial District Judge W.C. Kirkendall that County Judge Mike Wiggins exceeded his authority in a June 20 order declaring a drought disaster and banning sale, use or possession of fireworks in the county.
Mr. W Fireworks and its principal, Wayne Wildman, claim unstated damages including lost income and attorney fees.
Kirkendall declined to issue the restraining order and set a hearing at 8:30 a.m. Monday to hear the case for a temporary injunction and declaratory judgement against the county.
The local government code sets out a procedure for restricting fireworks that is often invoked in this area — the ban on “rockets on sticks and missiles with fins” that was called earlier this summer here in Guadalupe County and in neighboring Comal County.
The law provides that such a restriction must be put in place by June 15 to enable fireworks vendors time to take the law into consideration when placing fireworks orders. The problem with Guadalupe County's order, Gueringer said, is it was issued five days too late.
Gueringer said Mr. W Fireworks would like to be allowed to open after Monday's hearing — but not with the missiles with fins and rockets on sticks prohibited earlier.
“The business does want to be allowed to receive the benefit of the extraordinary effort and expense it's put into Guadalupe County to move forward with the fireworks season,” Gueringer said.
But Mr. W Fireworks won't be the only entity that loses out if fireworks cannot be sold in Guadalupe County.
Wildman's business model includes allowing local non-profits to provide labor to operate his stands for a cut of the action.
One of those, County Line Volunteer Fire Department, which hands out fire prevention brochures with fireworks, depends on its income from Mr. W. Fireworks to buy much-needed safety equipment. Chief Bill Gebhardt, who said he understands Wiggins' reasons for the emergency ban, said it would cost his department $8,000 or more in income.
Wiggins, who cited an “extreme” wild fire danger in issuing the June 20 order in an attempt to avoid a replay of the New Year's holiday, when firefighters around the county answered 68 fireworks-related calls in a 24-hour period, warned commissioners the county could face a lawsuit like the one Mr. W Fireworks filed against Comal County over New Year's 2005, when that county outlawed fireworks on the basis of a similar drought danger.
Precinct 4 Commissioner and former New Braunfels mayor, Jan Kennady, acting as county judge, banned fireworks over that holiday. Mr. W. Fireworks sought similar action in that case in a highly unusual Saturday hearing before 274th Judicial District Judge Gary Steel.
In that case, Steel sided with the county, and Mr. W. Fireworks and a local purveyor both filed suit.
Comal County was upheld in district court on the basis of Perry's 2005 drought disaster declaration, but Mr. W Fireworks' 2006 lawsuit is now wending its way through the appeals process.
Wiggins said late Friday he'd conferred with Assistant County Attorney Robert Etlinger and felt with litigation pending, he shouldn't say much.
But Wiggins did say he believed it was important to do whatever he could to protect the lives and property of the county's citizens.
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