Cascade Fireworks, Inc. v. State

• Citation: 86 Or.App. 355,738 P.2d 1013
• Parties: CASCADE FIREWORKS, INC., an Oregon Corporation, dba Uncle Sam's Wholesale Fireworks, Appellant, v. STATE of Oregon, Respondent. 85-2350; CA A40335.
• Decision Date: 08 July 1987
• Court: Oregon Court of Appeals

Page 1013

738 P.2d 1013

86 Or.App. 355

CASCADE FIREWORKS, INC., an Oregon Corporation, dba Uncle Sam's Wholesale Fireworks, Appellant, v. STATE of Oregon, Respondent.

85-2350; CA A40335.

Court of Appeals of Oregon.

Argued and Submitted Feb. 25, 1987.

Decided July 8, 1987.

Joseph E. Penna, Monmouth, argued the cause and filed the brief for appellant.

Jerome S. Lidz, Asst. Atty. Gen., Salem, argued the cause for respondent. On the brief were Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., and John A. Reuling, Jr., Asst. Atty. Gen., Salem.

Before RICHARDSON, P.J., and NEWMAN and DEITS, JJ.

DEITS, Judge.

Plaintiff, a wholesaler of fireworks, brought this declaratory judgment action challenging the constitutionality of statutes regulating the sale of fireworks. The trial court upheld the constitutionality of the statutes. We affirm.

ORS 480.110 to ORS 480.160 provide a comprehensive statutory scheme for the regulation of the sale of fireworks. ORS 480.120 prohibits sales within Oregon except under limited circumstances. Sales to customers residing outside the state may be made in accordance with ORS 480.156, which prohibits sales to any out-of-state resident who does not

"(1) * * * possess and present to the seller for inspection at the time of sale a valid license or permit issued in the name of such out-of-state resident, if such license or permit is required to purchase, possess, transport, store, distribute, sell or otherwise deal with or use fireworks or items described in ORS 480.127, by the laws of such other state."

Plaintiff contends ¹ that ORS 480.156 violates the Commerce Clause, ² because it unduly restricts the flow of commerce among the states without justification. The test for that claim is stated in Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970):

"Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will, of course, depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities." 397 U.S. at 142, 90 S.Ct. at 847.

Plaintiff argues that the statute is a burden on interstate commerce, because a seller must determine the validity of a purchaser's permit before a sale and because no wholesaler can risk prosecution by selling to a non-resident who might not have a valid permit. However, a violation of ORS 480.156 is a Class B misdemeanor, for which a culpable mental state must be proven. A wholesaler's reasonable belief that a permit was valid would provide a defense to a prosecution for violation of the statute and, thus, the application of the statute could have only incidental effects on interstate commerce.

Further, the statute advances a legitimate local public interest in the safety of the citizens of the state. Before the enactment of the law, a wholesaler was permitted to sell to an out-of-state purchaser but could deliver the fireworks to a local common carrier for shipment. There was no requirement that the purchaser present a license or permit from another state, and the fireworks could be...