American Promotional v. Blumenthal

• Decision Date: 22 January 2008
• Docket Number: No. 17868.,17868.
• Citation: 285 Conn. 192,937 A.2d 1184
• Court: Connecticut Supreme Court
• Parties: AMERICAN PROMOTIONAL EVENTS, INC. v. Richard BLUMENTHAL et al.

937 A.2d 1184

285 Conn. 192

AMERICAN PROMOTIONAL EVENTS, INC. v. Richard BLUMENTHAL et al.

No. 17868.

Supreme Court of Connecticut.

Argued May 15, 2007.

Decided January 22, 2008.

Terrence M. O'Neill, assistant attorney general, with whom was Michael J. Lanoue, assistant attorney general, and, on the brief, Henri Alexandre, assistant attorney general, for the appellants (defendants).

F. Jerome O'Malley, New London, for the appellee (plaintiff).

BORDEN, NORCOTT, KATZ, PALMER and VERTEFEUILLE, Js.^*

PALMER, J.

The sole issue raised by this appeal is whether the trial court correctly concluded that a firework known and marketed as "Piccolo Pete" is a "fountain" within the meaning of General Statutes § 29-356¹ and, therefore, exempt from the general prohibition against fireworks contained in General Statutes § 29-357.² The plaintiff American Promotional Events, Inc. doing business as TNT Fireworks, brought this action seeking declaratory and injunctive relief after the named defendant, Richard Blumenthal, the attorney general of the state of Connecticut,³ issued a cease and desist order directing the plaintiff to cease any further sales or distribution of Piccolo Pete. The trial court rendered judgment for the plaintiff, concluding that Piccolo Pete is an exempt "fountain" for purposes of §§ 29-356(3) and 29-357(a). The trial court also enjoined the state from preventing or seeking to prevent the plaintiff from selling or distributing Piccolo Pete in this state. On appeal,⁴ the state claims that the trial court incorrectly concluded that Piccolo Pete is a fountain and, therefore, subject to the statutory exemption applicable to such products. We agree with the state and, accordingly, reverse the judgment of the trial court.

The following undisputed factual and procedural background is relevant to our resolution of the state's claim. The plaintiff is an Alabama corporation engaged in the wholesale and retail sale and distribution of consumer fireworks. The plaintiff has been doing business in this state since about June, 2000, principally through large, retail chain stores. Among the products that the plaintiff sells and distributes is Piccolo Pete, a firework that, upon ignition, emits a flame, some sparks and smoke, and a loud whistling noise.

For some time prior to June 1, 2000, the use and sale of fireworks generally, including sparklers, was prohibited in this state. On that date, however, the legislature passed Public Acts 2000, No. 00-198 (P.A. 00-198), which amended General Statutes (Rev. to 1999) §§ 29-356 and 29-357. Under that amendment, the unauthorized use and sale of fireworks continued to be banned. See P.A. 00-198, § 2. Although sparklers were included in the definition of fireworks, the legislature carved out an exception for the sale and use of sparklers that were nonexplosive, nonaerial and did not contain more than 100 grams of pyrotechnic mixture per item. Id., codified at General Statutes (Rev. to 2001) § 29-357(a).⁵ Piccolo Pete meets those requirements, and the plaintiff sold and distributed Piccolo Pete as a sparkler in reliance on the provisions of P.A. 00-198.

In June, 2005, however, personnel from the office of the state fire marshal of the department of public safety conducted a field test of Piccolo Pete after being alerted by local fire marshals that the product potentially was unsafe. The test revealed that, when ignited, Piccolo Pete produces sparks, smoke, a whistling noise and a four to five inch open flame that lasts for five to six seconds. On June 27, 2005, acting on the state fire marshal's determination that Piccolo Pete was not a sparkler within the meaning of General Statutes (Rev. to 2005) § 29-357(a),⁶ the attorney general issued a cease and desist order requiring, inter alia, that the plaintiff immediately discontinue the sale and distribution of Piccolo Pete.⁷ The plaintiff complied with the cease and desist order⁸ but thereafter commenced the present action seeking both a declaratory judgment that Piccolo Pete is a lawful product and an injunction prohibiting the state from bringing or threatening to bring any enforcement action against it for the distribution or sale of Piccolo Pete in this state.

While the plaintiff's action was pending in the trial court, the legislature again amended §§ 29-356 and 29-357 in 2006. Public Acts 2006, No. 06-177, §§ 1 and 2 (P.A. 06-177) (effective June 9, 2006).⁹ Under the amendments, "`[s]parklers'" are defined as a "wire or stick coated with pyrotechnic composition that produces a shower of sparks upon ignition"; id., at § 1, codified at General Statutes § 29-356(2); and "`[f]ountain'" is defined in relevant part as "any cardboard or heavy paper cone or cylindrical tube containing pyrotechnic mixture that upon ignition produces a shower of colored sparks or smoke...." P.A. 06-177, § 1, codified at General Statutes § 29-356(3). Although neither sparklers nor fountains fall within the statutory definition of fireworks; see General Statutes § 29-356(1); it is unlawful to use, sell or distribute sparklers and fountains unless they are nonexplosive, nonaerial and contain not more than 100 grams of pyrotechnic mixture per item.¹⁰

General Statutes § 29-357(a). In fact, the unlawful use, sale or distribution of sparklers and fountains is subject to criminal sanctions.¹¹ General Statutes § 29-357(d).

At trial, both parties presented expert testimony regarding the pyrotechnic characteristics of Piccolo Pete. Wayne H. Maheu, executive director of the division of fire, emergency and building services of the department of public safety, testified for the state. According to Maheu, the field tests that he had conducted on behalf of the office of the state fire marshal revealed that Piccolo Pete produced an exposed flame of approximately four to five inches in height and five to six seconds in duration. Maheu further testified that Piccolo Pete emits only a limited amount of smoke and sparks, and that the product's dominant feature or attraction is its flame. Maheu also indicated that he was not aware of any other firework marketed or sold in Connecticut that produces a flame as large as the flame produced by Piccolo Pete.

John A. Conkling testified as an expert witness for the plaintiff. Conkling is a chemist and consultant who regularly testifies as an expert for the American Pyrotechnics Association, the primary trade association of the fireworks industry. Conkling testified that all sparklers and fountains have some sort of flame associated with them, that Piccolo Pete's most striking pyrotechnic effect is its whistle, and that a four to five inch flame with a five to six second duration is not inconsistent with the pyrotechnic effects of a fountain. In addition to hearing the expert testimony, the trial court viewed a video demonstration of an ignited Piccolo Pete.¹²

In support of its claim that Piccolo Pete is exempt from the prohibition of § 29-357, the plaintiff maintained that Piccolo Pete emits a shower of colored sparks, is nonexplosive and nonaerial, and contains not more than 100 grams of pyrotechnic mixture. The state maintained that Piccolo Pete's flame is its primary pyrotechnic effect and that Piccolo Pete does not produce sufficient sparks to constitute a "shower" of sparks within the meaning of § 29-356(2) or (3).

The trial court issued a memorandum of decision denying the plaintiff's request for declaratory and injunctive relief. The court concluded that, although Piccolo Pete does emit "some smoke and sparks from [its] flame," it does not produce a "shower" of sparks within the meaning of § 29-356(2) or (3) and, therefore is not a sparkler or fountain within the meaning of those statutory provisions.

The plaintiff thereafter filed a motion to reargue in which it asserted, for the first time, that, under § 29-356(3), a firework that produces either a "shower of colored sparks or smoke" is a fountain as long as it also is nonexplosive, nonaerial and does not contain more than 100 grams of pyrotechnic mixture. (Emphasis altered.) The plaintiff further maintained that, because Piccolo Pete produces at least some smoke and otherwise meets the requirements of § 29-356(3), it is a fountain and, therefore, exempt from the general ban on fireworks. See General Statutes § 29-357(a). In response to the plaintiff's motion, the state claimed that § 29-356(3) must be construed to require either a shower of colored sparks or a shower of smoke. According to the state, Piccolo Pete does not satisfy the latter requirement because it only produces a small amount of smoke, and the minimal amount of smoke that it does produce is ancillary to its primary pyrotechnic effect, which, the state asserted, is its four to five inch flame.

The trial court granted the plaintiff's motion and, after reargument, issued a second memorandum of decision in which it concluded that, "since Piccolo Pete emits smoke," it is a fountain within the meaning of § 29-356(3). In accordance with its conclusion, the trial court rendered judgment for the plaintiff and issued an injunction prohibiting the state from taking any action against the plaintiff or its retail agents for selling or distributing Piccolo Pete.

On appeal, the state claims that the trial court incorrectly concluded that Piccolo Pete is a fountain within the meaning of § 29-356(3) merely because it emits smoke. In particular, the state maintains that, to fall within the statutory definition of "fountain," a firework that does not produce a shower of sparks must, alternatively, produce a shower of smoke, not just some smoke, and otherwise meet the requirements of § 29-356(3).¹³ In support of its claim, the state notes, and the plaintiff concedes, that all fireworks produce at least some smoke,¹⁴ and, therefore, to construe § 29-356(3) as merely requiring the emission of smoke, no matter how small the amount, would render superfluous the provision of § 29-356(3) exempting fireworks...