Phantom of Brevard, Inc. v. Brevard County

• Decision Date: 23 December 2008
• Docket Number: No. SC07-2201.,No. SC07-2200.,SC07-2200.,SC07-2201.
• Citation: 3 So.3d 309
• Parties: PHANTOM OF BREVARD, INC., Petitioner, v. BREVARD COUNTY, Florida, Respondent. Brevard County, Florida, Petitioner, v. Phantom of Brevard, Inc., Respondent.
• Court: Florida Supreme Court

3 So.3d 309

PHANTOM OF BREVARD, INC., Petitioner, v. BREVARD COUNTY, Florida, Respondent.

Brevard County, Florida, Petitioner, v. Phantom of Brevard, Inc., Respondent.

No. SC07-2200.

No. SC07-2201.

Supreme Court of Florida.

December 23, 2008.

Rehearing Denied February 17, 2009.

Mark D. Shuman of Gray Robinson, P.A., Melbourne, FL, for Petitioner/Respondent.

Scott L. Knox, County Attorney, Viera, FL, for Respondent/Petitioner.

CANADY, J.

Phantom of Brevard, Inc. and Brevard County seek review of the decision of the Fifth District Court of Appeal in Phantom of Brevard, Inc. v. Brevard County, 966 So.2d 423 (Fla. 5th DCA 2007), on the ground that it expressly and directly conflicts with the decision of the Second District Court of Appeal in Phantom of Clearwater, Inc. v. Pinellas County, 894 So.2d 1011 (Fla. 2d DCA 2005). The district courts disagree about whether substantially similar county ordinance provisions related to the regulation of fireworks conflict with chapter 791, Florida Statutes. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons stated below, we quash the Fifth District's decision in Phantom of Brevard to the extent it is inconsistent with this opinion, and we approve the Second District's decision in Phantom of Clearwater on the conflict issue.

FACTUAL AND PROCEDURAL BACKGROUND

Phantom of Brevard, Inc. (Phantom) sought a judgment declaring Brevard County, Florida, Ordinance No. 05-60 (December 6, 2005), as amended by Brevard County, Florida, Ordinance No. 06-18 (April 11, 2006), unconstitutional. Phantom of Brevard, 966 So.2d at 425. The circuit court entered a final summary judgment in favor of Brevard County, concluding that it was required to follow the Second District's decision in Phantom of Clearwater. The Second District in Phantom of Clearwater had upheld a similar Pinellas County fireworks ordinance with the exception of one sentence that Brevard County had since removed from its fireworks ordinance. Phantom appealed the circuit court's judgment.

On appeal, the Fifth District affirmed in part and reversed in part the circuit court's judgment. Phantom of Brevard, 966 So.2d at 428. First, the Fifth District held that chapter 791, Florida Statutes (2006), does not expressly preempt the regulation of fireworks. Id. at 427. Second, the Fifth District concluded that the legislative history of chapter 791 does not support implied preemption. Id.

However, the Fifth District reversed in part and remanded with instructions to sever certain provisions of the ordinance that it found in conflict with chapter 791. Id. at 428. Among the provisions that the Fifth District found to be in direct conflict is section 10, entitled "Evidence of financial responsibility," with which businesses must comply in order to receive a permit for selling fireworks and sparklers in Brevard County. See id. at 428-29. Section 10 provides:

In furtherance of the provisions of sections 8 and 9, all sellers of fireworks must keep in force an insurance policy showing general, comprehensive, liability and property damage insurance coverage on an occurrence basis with minimum limits in the policy of not less than $1,000,000.00 combined single limit coverage for each loss that may result from the activities of the sellers. Sellers must maintain Workers' Compensation coverage as required pursuant to F.S. Ch. 440. A failure to maintain this required coverage after the procurement of a permit shall be a violation of this ordinance and grounds for suspension of their permit from the authority and the sale of the permitted goods shall cease until such time as the required insurance is obtained.

Id. at 428 (quoting Ordinance No. 05-60, § 10). The Fifth District explained its reasoning and its disagreement with the Second District as follows:

Upon considering substantially similar language in the Pinellas County ordinance, the Phantom of Clearwater court determined that a county may, as part of its permitting process, demand proof of the seller's ability to respond in damages. 894 So.2d at 1023. We disagree. Brevard County's financial responsibility ordinance is in direct conflict with section 791.001, Florida Statutes, which provides that chapter 791 "shall be applied uniformly throughout the state." Because chapter 791 does not contain any financial responsibility standard or requirement, retailers and other supply-side entities are subject to potentially disparate obligations throughout the state. Although the legislature has provided counties with considerable discretion to determine the amount of a bond required of a fireworks display licensee under section 791.03, there is no reason to believe that the legislature would have countenanced a system in which a seller of fireworks or sparklers must maintain a particular amount of liability insurance simply because one of the counties in which it does business requires such coverage.

Id. at 428-29.

In contrast to the Fifth District, the Second District in Phantom of Clearwater, 894 So.2d at 1023, had rejected the contention that the permitting requirement of compliance with the Pinellas County fireworks ordinance's "Evidence of financial responsibility" provision conflicts with chapter 791. See id.¹ The Second District reasoned:

Although the ordinance does establish a permitting process for all businesses involving fireworks and that process imposes additional requirements on businesses wanting to avail themselves of the benefits of doing business in Pinellas County, this permitting process does not directly conflict with the provisions of chapter 791.

. . . A person can comply with the requirements of the ordinance without violating chapter 791, and can comply with the requirements of chapter 791 without violating the ordinance.

Id.

Both Phantom and Brevard County sought review on the ground that the Fifth District's decision in Phantom of Brevard is in express and direct conflict with the Second District's decision in Phantom of Clearwater regarding whether these substantial similar "Evidence of financial responsibility" provisions conflict with chapter 791.²

DISCUSSION

We begin our analysis by summarizing chapter 791, Florida Statutes (2006), and Brevard County Ordinance 05-06, as amended by Brevard County Ordinance 06-18.

Chapter 791, entitled "Sale of Fireworks," is a relatively short chapter. It begins with section 791.001, which provides:

This chapter shall be applied uniformly throughout the state. Enforcement of this chapter shall remain with local law enforcement departments and officials charged with the enforcement of the laws of the state.

Then, the chapter defines various terms, including fireworks, sparklers, manufacturer, retailer, and wholesaler. In particular, "fireworks" is defined as including "any combustible or explosive composition or substance or combination of substances or, except as hereinafter provided, any article prepared for the purpose of producing a visible or audible effect by combustion, explosion, deflagration, or detonation." 791.01(4)(a), Fla. Stat. However, the term fireworks does not include snakes, party poppers, auto burglar alarms, and other expressly delineated items. § 791.01(4)(c), Fla. Stat. To be excluded from the term "fireworks," sparklers must be tested and approved by the Division of the State Fire Marshal (Division) prior to retail sale. § 791.01(4)(b), Fla. Stat. Sparklers also must be stored in the manner described by section 791.015. And a retailer (defined by section 791.01(6) as someone engaged in selling sparklers) may not sell sparklers or other products authorized for sale by chapter 791 "unless the product was obtained from a manufacturer, distributer, or wholesaler registered with the division." § 791.02(2), Fla. Stat.

Significantly, section 791.02(1) prohibits the use and sale of items that fall within the definition of fireworks. However, there are several exceptions to this general prohibition. First, there is an exception for the use and sale of fireworks for certain public displays of fireworks. See § 791.02(1), Fla. Stat.; § 791.04, Fla. Stat. The governing bodies of counties and municipalities can adopt rules for granting permits for the public displays of fireworks by fair associations, amusement parks, or other organizations. § 791.02(1), Fla. Stat. Boards of county commissioners must require bonds from licensees in an amount not less than $500. § 791.03, Fla. Stat. Further, outdoor displays are subject to the safety standards of "the National Fire Protection Association (NFPA) 1123, Code for Fireworks Display, 1995 Edition." § 791.012, Fla. Stat. But "[a]ny state, county, or municipal law, rule, or ordinance may provide for more stringent regulations for the outdoor display of fireworks." Id. And the Code for Fireworks Display does not govern fireworks displays on private, residential property. Id.

In addition to exempting the use and sale of fireworks for certain public displays, chapter 791 exempts the wholesale of fireworks if the sales are delivered to out-of-state entities or to other manufacturers, distributers, or wholesalers. § 791.04, Fla. Stat. Moreover, chapter 791 exempts the use of fireworks for signal purposes by railroad and transportation agencies, for quarrying purposes, for blasting or industrial purposes, for show or theatre purposes (blank cartridges), "or for signal or ceremonial purposes in athletics or sports, or for use by military organizations." Id. Chapter 791 also exempts the sale and use of fireworks for "frightening birds from agricultural works and fish hatcheries." § 791.07, Fla. Stat. This last use "shall be governed entirely by the rules prescribed by the Department of Agriculture and Consumer Services." Id.

Brevard County's fireworks ordinance begins with a list of definitions, including one that specifies that "[f]ireworks, sparklers, retailer, wholesaler, distributor, and manufacturer shall have the same meaning as...