Stajos v. City of Lansing

• Citation: 561 N.W.2d 116,221 Mich.App. 223
• Decision Date: 24 January 1997
• Docket Number: Docket No. 178767
• Parties: William James STAJOS d/b/a American Eagle Fireworks, Inc., Plaintiff-Appellant, v. CITY OF LANSING, Defendant-Appellee, and Ingham County Prosecuting Attorney, Intervening-Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 116

561 N.W.2d 116

221 Mich.App. 223

William James STAJOS d/b/a American Eagle Fireworks, Inc., Plaintiff-Appellant, v. CITY OF LANSING, Defendant-Appellee, and Ingham County Prosecuting Attorney, Intervening-Defendant-Appellee.

Docket No. 178767.

Court of Appeals of Michigan.

Submitted Oct. 15, 1996, at Lansing.

Decided Jan. 24, 1997, at 9:05 a.m.

Released for Publication April 9, 1997.

Hugh M. Davis, Jr., Detroit, for plaintiff-appellant.

Donald E. Martin, Prosecuting Attorney, and Guy L. Sweet, Assistant Prosecuting Attorney, Lansing, for Ingham County Prosecuting Attorney.

Before CORRIGAN, P.J. and TAYLOR and D.A. JOHNSTON ^*, JJ.

TAYLOR, Judge.

Plaintiff appeals as of right from an order denying him the relief he sought in this declaratory judgment action. We affirm.

On June 17, 1993, police officers entered one of plaintiff's Lansing business locations and seized certain fireworks pursuant to a search warrant. Six days later, plaintiff filed a complaint seeking injunctive relief and a declaratory judgment. He alleged that he was entitled to an injunction to prevent the threat of further seizures, given the impending July 4th fireworks season. The complaint further asserted that the case arose from the fact that there are a number of well-defined categories of common fireworks recognized by the United States Department of Transportation (USDOT) that are neither specifically restricted nor specifically allowed by M.C.L. § 750.243a; M.S.A. § 28.440(1). It was plaintiff's position that a proper reading of this statute allowed the unrestricted sale of the following kinds of fireworks: helicopter type rockets, mines and shells, ground spinners, wheels, illuminating torches, and new and novel items not specifically classified, but approved by USDOT as class C common fireworks. Plaintiff alternatively argued that M.C.L. § 750.243a; M.S.A. § 28.440(1) was preempted by federal regulations or, as a criminal statute, was void for vagueness as it related to the five specifically enumerated categories of federal class C common fireworks.

The trial court ordered the City of Lansing to show cause why a preliminary injunction should not issue. At the show cause hearing, plaintiff explained that at the heart of the lawsuit was the desire to obtain a ruling regarding the legality of selling those fireworks that are not specifically forbidden or specifically allowed by M.C.L. § 750.243a; M.S.A. § 28.440(1). At the conclusion of the show cause hearing, the court indicated that the statute needed to be amended to clarify what fireworks may be lawfully sold and issued a temporary restraining order allowing plaintiff to sell all fireworks not specifically prohibited for use without a permit pursuant to subsection 2 of the statute. Thereafter, the court permitted the Ingham County Prosecuting Attorney to intervene as a party defendant because plaintiff was asking the court to construe a penal statute and because any ruling could affect pending criminal district court cases against plaintiff for selling illegal fireworks. The court subsequently held an evidentiary hearing at which two experts testified for the plaintiff, explaining various kinds of fireworks and how they work. Dr. Roger Schneider, a chemistry professor and combustible materials consultant, testified that the statute was extremely ambiguous and stated that whoever wrote the statute did not understand the fireworks business. He testified that the entire statute is "fraught with ambiguity and nonsense." The court thereafter dissolved the temporary restraining order, stating as follows: "The statute, as written, is clear and unambiguous on its face and has been for the past sixty (60) years." The court also rejected plaintiff's preemption argument. The court later denied plaintiff's motion for reconsideration.

I

We review de novo a trial court's rulings with respect to questions of law in a declaratory judgment action. Lansing Ass'n of School Administrators v. Lansing School Dist. Bd. of Ed., 216 Mich.App. 79, 84, 549 N.W.2d 15 (1996). Where the language of a statute is clear and unambiguous, the intent of the Legislature must be effected according to its plain meaning. Victorson v. Dep't of Treasury, 439 Mich. 131, 137-138, 482 N.W.2d 685 (1992). Where, as here, the language is not plain, but is subject to varying interpretations, we look to the purpose of the act to ascertain legislative intent. Longstreth v. Gensel, 423 Mich. 675, 680, 377 N.W.2d 804 (1985).

The relevant portion of M.C.L. § 750.243a; M.S.A. § 28.440(1) provides as follows:

(2) Except as provided in subsection (3) and sections 243b, 243c and 243d, a person, firm, partnership, or corporation shall not offer for sale, expose for sale, sell at retail, keep with intent to sell at retail, possess, give, furnish, transport, use, ¹ explode, or cause to explode any of the following:

(a) A blank cartridge, blank cartridge pistol, toy cannon, toy cane, or toy gun in which explosives are used. [cf. subsection 3(b), infra ].

(b) An unmanned balloon which requires fire underneath to propel it and is not moored to the ground while aloft.

(c) Firecrackers, torpedoes, skyrockets, roman candles, daygo bombs, ² bottle rockets, whistling chasers, rockets on sticks, or other fireworks of like construction. ³

(d) Fireworks containing an explosive or inflammable compound or a tablet or other device commonly used and sold as fireworks containing nitrates, fulminates, chlorates, oxalates, sulphides of lead, barium, antimony, arsenic, mercury, nitroglycerine, phosphorus, or a compound containing these or other modern explosives.

(3) A permit is not required for the following:

(a) Flat paper caps containing not more than .25 of a grain of explosive content per cap, in packages labeled to indicate the maximum explosive content per cap.

(b) Toy pistols, toy cannons, toy canes, toy trick noise makers, and toy guns of a type approved by the director of the department of state police in which paper caps as described in subdivision (a) are used and which are so constructed that the hand cannot come in contact with the cap when in place for the explosion and which are not designed to break apart or be separated so as to form a missile by the explosion. [cf. subsection 2(a), supra ].

(c) Sparklers containing not more than .0125 pounds of burning portion per sparkler.

(d) Flitter sparklers in paper tubes not exceeding 1/8 inch in diameter, cone fountains, and cylinder fountains.

(e) Toy snakes not containing mercury, if packed in cardboard boxes with not more than 12 pieces per box for retail sale and if the manufacturer's name and the quantity contained in each box are printed on the box; and toy smoke devices.

(f) [An exception not directly relevant to this appeal.]

(g) [An exception not directly relevant to this appeal.]

There is no dispute that the statute makes it a misdemeanor to sell ⁴ or use without a permit (1) firecrackers, (2) torpedoes, (3) skyrockets, (4) roman candles, (5) daygo bombs, (6) bottle rockets, (7) whistling chasers, (8) rockets on sticks, (9) other fireworks of like construction, (10) fireworks containing an explosive or inflammable compound, or (11) a tablet or other device commonly used and sold as fireworks containing nitrates, fulminates, chlorates, oxalates, sulfides of lead, barium, antimony, arsenic, mercury, nitroglycerine, phosphorus, or a compound containing these or other modern explosives.

There is also no dispute that a person may sell or use without a permit (1) certain flat paper caps, (2) certain toy pistols, toy cannons, toy canes, toy trick noisemakers, toy guns that use paper caps, (3) certain sparklers, (4) certain flitter sparklers, (5) cone fountains, (6) cylinder fountains, (7) certain toy snakes, and (8) toy smoke devices.

Plaintiff argues that a proper interpretation of the statute would allow him lawfully to possess and sell without a permit certain fireworks that are not among the categories expressly allowed under subsection 3 or expressly forbidden by name under subsection 2, i.e., helicopter-type rockets, mines and shells, ground spinners, wheels, illuminating torches, and new and novel items not specifically classified, but approved by USDOT as class C common fireworks. We disagree.

Plaintiff argues that M.C.L. § 750.243a; M.S.A. § 28.440(1) must be strictly construed in his favor because it is a penal statute. While plaintiff is correct in characterizing the statute as penal, this does not warrant strict construction. This statute is a part of the Michigan Penal Code, M.C.L. 750.1 et seq.; M.S.A. § 28.191 et seq. M.C.L. § 750.2; M.S.A. § 28.192 modifies the rules of statutory construction for statutes found in the Michigan Penal Code, stating in relevant part that "[t]he rule that a penal statute is to be strictly construed shall not apply to this act or any of the provisions thereof." Therefore, the rule of lenity that requires ambiguities in penal statutes to be resolved in favor of leniency does not apply to the interpretation of this statute. People v. Poole, 218 Mich.App. 702, 713, n. 2, 555 N.W.2d 485 (1996).

Dr. Schneider testified that subsection 2(d) is ambiguous because it is subject to two interpretations. The first interpretation would ban all fireworks that contain any combination of the anions (nitrates, fulminates, chlorates, oxalates, or sulfides of lead) with any of the other materials (barium, antimony, arsenic, mercury, nitroglycerine, or phosphorous). Dr. Schneider indicated that such a statutory scheme would preclude the use of barium nitrate, which is used in all sparklers, and antimony sulfide, which is used in a variety of other fireworks. A second interpretation would ban all compounds involving any of the five anions. This would preclude the use of barium nitrate, antimony sulfide, and potassium nitrate. Dr. Schneider testified that potassium nitrate is used to manufacture the black powder found in most...