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

Decision Date08 April 1977
Docket NumberCiv. A. No. 77-0100-R.
PartiesSNAP-N-POPS, INCORPORATED, Plaintiff, v. C. A. BROWNING, Fire Marshal of the County of Henrico, Defendant.
CourtU.S. District Court — Eastern District of Virginia

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

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.1 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.

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 silver azide compound. When Snap `n' Pops are squeezed, dropped, or thrown against a hard surface, the mechanical shock causes the silver azide to decompose, resulting in an audible noise or pop and the dispersal of the crushed gravel. The Ordinance defines fireworks as any

"combustible or explosive composition, or any substance . . . prepared for the purpose of producing a visible or an audible effect by combustion, explosion, deflagration or detonation."

Although the ordinance itself does not define "explosion", it is elsewhere technically defined as a chemical reaction which results in the instantaneous release of gases and heat. See, e. g., 49 C.F.R. § 173.50 (DOT Regulations).2 The decomposition of silver azide in Snap `n' Pops does result in the production of solid silver, gaseous nitrogen, and a minute quantity of heat, and is, thus, within the technical sense, an explosion. Plaintiff contends that the word "explosion" denotes a violent discharge with some destructive effect and that the decomposing process in Snap `n' Pops produces no destructive or even noticeable effect on its surroundings. Although the Court is satisfied, on the basis of evidence adduced at the hearing, that Snap `n' Pops does not constitute a fire hazard, the resultant dispersal of crushed gravel particles may pose a risk of bodily injury, particularly to the eyes.

Plaintiff further contends that, if explosive in nature, Snap `n' Pops are the substantial equivalent of paper caps and, as such, are expressly exempted from the application of the Ordinance. Section 13.2 of the Ordinance expressly exempts paper caps that contain less than .25 of a grain of explosive content. The evidence before the Court establishes that Snap `n' Pops, on the average, contain .012 of a grain, or about 1/20th of the explosive content permitted for paper caps. However, it is not the explosive content but rather the dispersal effect of the gravel particles in Snap `n' Pops that constitutes the potential safety hazard, and Snap `n' Pops is, therefore, not the substantial equivalent of paper caps. The Court concludes that Snap `n' Pops are fireworks within the meaning of § 13.2 of the Henrico...

To continue reading

Request your trial
1 cases
  • South Dakota Dept. of Public Safety ex rel. Melgaard v. Haddenham, s. 13992
    • United States
    • South Dakota Supreme Court
    • 24 Mayo 1983
    ...at 990 (quoting Sproles v. Binford, 286 U.S. 374, 388, 52 S.Ct. 581, 585, 76 L.Ed. 1167, 1179 (1932)); see also Snap-N-Pops, Inc. v. Browning, 432 F.Supp. 360 (E.D.Va.1977). We will not substitute our judgment on this matter for that of the Legislature. Appellants contend that because SDCL ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT