Snap-N-Pops, Inc. v. Browning, Civ. A. No. 77-0100-R.

• Court: United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
• Writing for the Court: MERHIGE
• Citation: 432 F. Supp. 360
• Decision Date: 08 April 1977
• Docket Number: Civ. A. No. 77-0100-R.
• Parties: SNAP-N-POPS, INCORPORATED, Plaintiff, v. C. A. BROWNING, Fire Marshal of the County of Henrico, Defendant.

432 F. Supp. 360

SNAP-N-POPS, INCORPORATED, Plaintiff,
v.
C. A. BROWNING, Fire Marshal of the County of Henrico, Defendant.

Civ. A. No. 77-0100-R.

United States District Court, E. D. Virginia, Richmond Division.

April 8, 1977.

432 F. Supp. 361

Robert P. Buford, Hunton & Williams, A. J. T. Byrne, Joseph C. Kearfott, Christopher J. Habenicht, Richmond, Va., for plaintiff.

432 F. Supp. 362

William G. Broaddus, County Atty., Henrico County, John L. Knight, Asst. County Atty., Richmond, Va., for defendant.

MEMORANDUM

MERHIGE, District Judge.

Snap-N-Pops, Incorporated (SNP), a Texas corporation, brings this action seeking to enjoin the restraint on the sale of its product in Henrico County, Virginia, alleging that the removal of said product, designated Snap `n' Pops, from retail establishments, constitutes the taking of private property without due process of law in violation of the Fourteenth Amendment of the United States Constitution, Article I, Section 11 of the Virginia Constitution, and the provisions of 42 U.S.C. § 1983. The defendant is C. A. Browning, Fire Marshal of the County of Henrico, Virginia. The amount in controversy exceeds $10,000 exclusive of interest and costs. Jurisdiction is based on diversity of citizenship pursuant to 28 U.S.C. § 1332, the existence of a federal question pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1343. The matter comes before the Court on plaintiff's motion for a preliminary injunction. A hearing has been held, and the matter is now ripe for disposition.

SNP markets novelty toy noisemakers known as Snap `n' Pops throughout the United States through various retail outlets. Until the commencement of this action, approximately 35 retail establishments in Henrico County, Virginia offered the product for sale. The principal retailers are the Southland Corporation (which operates and manages Seven-Eleven Convenience Stores) and Peoples Drug Stores.

On or before February 22, 1977, the defendant, C. A. Browning, Fire Marshal of Henrico County, determined that Snap `n' Pops were "fireworks" within the meaning of the Henrico County Fire Prevention Code and that it was unlawful to sell or distribute same in the County.<sup>1</sup> The defendant advised and requested Snap `n' Pops retail customers not to sell them, although he has not ordered the Snap `n' Pops removed or confiscated pending the outcome of this litigation.

In considering a motion for a preliminary injunction, there are four factors which are to be considered by the Court:

"A threat of irreparable injury to the plaintiff should preliminary injunctive relief be denied; injury to other parties should the injunction issue; the probability that the plaintiff will succeed on the merits; and the interests of the public." Conservation Council of North Carolina v. Costanzo, 505 F.2d 498 (4th Cir. 1974).

For the reasons which follow, consideration of these factors leads the Court to conclude that it would be inappropriate to issue a preliminary injunction in this cause.

432 F. Supp. 363

SNP contends that the defendant's interference with the sale of Snap `n' Pops is unlawful and, therefore, constitutes a deprivation of plaintiff's property without just compensation or due process of law in violation of the rights guaranteed by the Fourteenth Amendment of the United States Constitution and the Due Process Clause of the Virginia Constitution. It is allegedly unlawful because (1) Snap `n' Pops are not "fireworks" within the meaning of the Henrico County Ordinance; and (2) even if Snap `n' Pops are included in the fireworks ordinance, the Ordinance itself is unconstitutionally vague and overbroad and that the inclusion of Snap `n' Pops within the prohibitive classification is an arbitrary and unreasonable exercise of the police powers. These contentions will be addressed seriatim.

Each unit of Snap `n' Pops consists of a small paper parcel approximately ¼ of an inch in diameter with a twisted paper tail approximately ¾ of an inch long. The parcel contains crushed gravel particles that are treated with a...