State v. Seigel, 90-1998

Citation163 Wis.2d 871,472 N.W.2d 584
Decision Date19 June 1991
Docket NumberNo. 90-1998,90-1998
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Bernard SEIGEL, Liela Seigel and Jerry Seigel, Defendants-Appellants. STATE of Wisconsin ex rel. COUNTY OF KENOSHA, Plaintiff-Respondent, v. Bernard SEIGEL, Jerry Seigel, Liela Seigel, d/b/a American Fireworks One, American Fireworks Two and American Fireworks, (Stringer Stand), Defendants-Appellants.
CourtCourt of Appeals of Wisconsin

William A. Jennaro, and Laura E. Schuett of Cook Franke, S.C., Milwaukee, for defendants-appellants.

Robert J. Jambois, Dist. Atty., for plaintiff-respondent.

Before NETTESHEIM, P.J., and SCOTT and ANDERSON, JJ.

NETTESHEIM, Presiding Judge.

Bernard Seigel, his wife Liela Seigel, and his cousin Jerry Seigel (the Seigels) appeal from a forfeiture judgment finding them in violation of sec. 167.10(2), Stats., which prohibits the sale of fireworks to persons not authorized to possess fireworks, and from an order granting a permanent injunction which imposes certain conditions on the Seigels' fireworks business. The court ordered the injunction pursuant to sec. 823.02, Stats., based upon its finding that the Seigels' three fireworks stores were public nuisances. The central issue on appeal is whether the Seigels were operating as retailers or wholesalers of fireworks when they sold fireworks to Illinois residents. We conclude that the trial court correctly construed sec. 167.10(4), which provides that sales of fireworks to nonresidents must be conducted on a wholesale basis. We also conclude that the trial court's findings that the Seigels were engaged in the illegal retail sale of fireworks to nonresidents is not clearly erroneous. Therefore, we affirm the forfeiture judgment and the injunction order.

We recount the Seigels' business practices in some detail. 1 For several years, the Seigels have owned and operated three outlets for the sale of fireworks in the town of Bristol, Kenosha county. Each of the three stores--American Fireworks One, American Fireworks Two and American Fireworks (Stringer Stand)--is located just off Interstate 94, near the Wisconsin-Illinois border. Many of the Seigels' customers are Illinois residents.

American Fireworks One and Two are housed in permanent structures. The Stringer Stand, a seasonal outlet, consists of a tent and a trailer which are parked near the intersection of Highway 50 and Interstate 94, in the parking lot of a restaurant. The bulk of the Seigels' sales occurred during the month of June and in the days directly preceding the Fourth of July holiday. Sales were particularly brisk on weekends during this period.

Section 167.10, Stats., establishes three tenets of Wisconsin fireworks law: (1) no person may possess or use fireworks without a permit, sec. 167.10(3); (2) novelty items may be possessed or used without a permit, see sec. 167.10(1) and (3); and (3) sales of fireworks to nonresidents must be conducted only on a wholesale basis, sec. 167.10(4). Each of the Seigels' three stores offered both fireworks and novelty items for sale. 2 The layout of the Seigels' stores reflected their attempts to comply with the requirements of sec. 167.10. The Seigels kept and displayed the fireworks apart from the novelty items. Indeed, in each store, the fireworks were cordoned off from the novelty items with either a rope or a fence. Additionally, the fireworks sections were marked with signs which stated "wholesale only." Two prices were displayed for each item--the retail price and the wholesale price.

The Seigels properly refused to sell fireworks to Wisconsin residents who did not have a permit. The Seigels would, however, sell fireworks to nonresidents who did not have permits and who were over the age of eighteen as established by valid identification. These transactions lie at the heart of the instant prosecutions. The Seigels contend that these sales to nonresidents were wholesale transactions. The state contends otherwise.

Section 167.10(4), Stats., which governs the sale of fireworks to nonresidents, requires not only that such sales be on a wholesale basis, but also that the items purchased be delivered to the customer by common carrier or an equivalent private shipper. Accordingly, the Seigels adopted various approaches to these transit requirements. The Seigels shipped some purchases to nonresident buyers via United Parcel Service. If a nonresident customer arrived in a private automobile, the Seigels packaged the nonresident's purchases, placed them in a Seigel truck, drove the truck across the border and placed the purchases in the customer's car in the parking lot of an Illinois truck stop. If a nonresident customer arrived in a vehicle other than an automobile, the Seigels packed the fireworks in a sealed box or opaque plastic garbage bag and placed the parcel in the customer's vehicle. 3

On June 30, 1989, the state brought a civil forfeiture action against the Seigels, alleging repeated violations of sec. 167.10, Stats., in connection with the sales period extending from June 4 to June 30, 1989. 4 This matter was assigned to the Honorable Bruce E. Schroeder.

Also on June 30, 1989, the state commenced an action under sec. 823.02, Stats., to enjoin the Seigels' business, on the grounds that it was a public nuisance. The state based this action on the alleged violations of sec. 167.10, Stats., set out in the civil forfeiture action. The state also made application for a temporary restraining order until such time as the nuisance claim could be heard on the merits. This nuisance action was assigned to the Honorable The two actions were consolidated before Judge Schroeder. 5 The matter was tried to the trial court without a jury on May 15-17, 1990. In its decision, 6 the trial court factually determined that the transactions were retail sales, and, therefore, that the Seigels had violated the statute. The court imposed a $350 forfeiture. 7 Based on these findings, the court declared the Seigels' business a public nuisance, granted the county's application for permanent injunction, but allowed the Seigels to continue to operate subject to their adherence with conditions set forth in its order. 8

Robert V. Baker. Judge Baker granted a temporary restraining order that same day.

On appeal, the Seigels raise six interrelated issues: (1) whether the trial court properly prohibited the admission of certain evidence; (2) whether the trial court properly admitted into evidence a copy of the Illinois Fireworks Regulation Act; (3) whether the state was estopped from bringing this action; (4) whether the evidence was sufficient to support the finding that the Seigels were engaged in retail sales; (5) whether the issuance of a permanent injunction was an appropriate exercise of discretion; and (6) whether the terms of the permanent injunction are proper. We are unpersuaded by the Seigels' arguments, and affirm the judgment and order in all respects.

ADMISSIBILITY OF EVIDENCE

The Seigels argue the trial court committed prejudicial error in refusing to admit into evidence a stipulation (hereafter the federal court stipulation) which they had previously entered into with certain state authorities. This stipulation concerned the Seigels' sales of fireworks to nonresidents. The Seigels contend that had this federal court stipulation been admitted into evidence, the state would have been estopped from alleging noncompliance with sec. 167.10, Stats., because the Seigels had relied in good faith on this stipulation. Additionally, the Seigels contend the court erred in admitting a copy of the Illinois Fireworks Regulation Action into evidence because it was not relevant.

The admission of evidence is within the discretion of the trial court and will not be overturned on appeal absent an abuse of discretion. See State v. Mink, 146 Wis.2d 1, 13, 429 N.W.2d 99, 104 (Ct.App.1988). We will sustain a discretionary act if the trial court exercised its discretion in accordance with accepted legal standards and in accordance with the facts of record. Id.

We begin with the federal court stipulation. This agreement was the product of a 1987 action brought in the Federal District Court for the Western District of Wisconsin by the Seigels against certain Section 167.10(4), Stats., provides:

                state authorities. 9  In that action, the Seigels alleged that the state authorities were interpreting sec. 167.10, Stats., in a manner violative of the commerce clause of the United States Constitution. 10  The Seigels agreed with the state authorities to dismiss their action in exchange for clarification of the manner in which they would be allowed to ship their fireworks products to nonresident buyers.  The trial court concluded that this federal court stipulation was irrelevant and refused to admit it into evidence.  We agree
                

This section does not prohibit a resident wholesaler, dealer or jobber from selling fireworks at wholesale, if that wholesaler, dealer or jobber ships or delivers the fireworks outside of this state in sealed opaque containers by, as defined in s. 194.01(1), (2) and (11), common motor carrier, contract motor carrier or private motor carrier engaged in the business of shipping or delivering property.... [Emphasis added.]

Thus, a merchant may run afoul of this statute in three ways: (1) the improper delivery of fireworks legitimately sold at wholesale; (2) the sale of fireworks at retail; (3) or both of the foregoing.

The federal court stipulation focused upon method of transport and delivery. These matters, however, were not relevant to the central question in this case--the Seigels' method of sale. We therefore concluded that the trial court did not abuse its discretion in refusing this evidence.

Even if the federal court stipulation had addressed the Seigels' method of sale, this would not have served to prove the facts of the alleged...

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