Vineland Fireworks v. Bureau of Alcohol, Tobacco, No. 07-2381.

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtFisher
Citation544 F.3d 509
PartiesVINELAND FIREWORKS CO., INC., Petitioner v. BUREAU OF ALCOHOL, TOBACCO, FIREARMS & EXPLOSIVES.
Decision Date10 October 2008
Docket NumberNo. 07-2381.
544 F.3d 509
VINELAND FIREWORKS CO., INC., Petitioner
v.
BUREAU OF ALCOHOL, TOBACCO, FIREARMS & EXPLOSIVES.
No. 07-2381.
United States Court of Appeals, Third Circuit.
Argued June 3, 2008.
Filed: October 10, 2008.

[544 F.3d 510]

Don P. Foster (Argued), Klehr, Harrison, Harvey, Branzburg & Ellers, Philadelphia, PA, for Petitioner.

[544 F.3d 511]

Kelsi B. Corkran (Argued), United States Department of Justice, Appellate Section, Mark B. Stern, United States Department of Justice, Civil Division, Appellate Staff, Washington, DC, for Respondent.

Before: FISHER and JORDAN, Circuit Judges, and YOHN,* District Judge.

OPINION OF THE COURT

FISHER, Circuit Judge.


Vineland Fireworks Co., Inc. ("Vineland") appeals the decision of the Acting Director ("Director") of the Bureau of Alcohol, Tobacco, Firearms & Explosives ("ATF") to revoke its license to manufacture fireworks and to deny its application for the renewal of its license to import fireworks. The Director found that Vineland's failure to keep records of its daily summary of magazine transactions on thirty-six occasions over the course of many months constituted a willful violation of 18 U.S.C. § 842(f) and 27 C.F.R. § 555.127. We hold that the Director's interpretation of "willful" is reasonable, and substantial evidence supports its finding that Vineland "willfully violated" the above provisions. For the reasons that follow, we will deny the petition for review of the Director's order.

I.

Vineland is a fireworks manufacturer and distributor owned and operated by Rose Pacitto with locations in Vineland, New Jersey and Coamo, Puerto Rico. Vineland applied for and became licensed by ATF in March 2000. For approximately eleven years prior to her application, Pacitto worked at Fireworks by Girone, a fireworks manufacturer and distributor owned and operated by Felix Girone, Pacitto's former husband. Fireworks by Girone operated out of the same site that later became Vineland.

In 1999, the United States Attorney for the District of New Jersey indicted Fireworks by Girone for knowingly and willfully manufacturing explosive materials without keeping proper records, in violation of 18 U.S.C. §§ 2, 842(f), and 844(a). The indictment stemmed from ATF inspections in 1995 and 1996, in which inspectors found that Fireworks by Girone had manufactured thousands of explosive devices without record and had improperly stored the devices. The investigators discussed the violations with Pacitto at that time because the company's federal explosives license listed her as a "responsible person."1 Fireworks by Girone pleaded guilty to the charge, and Pacitto (then as Rose Girone) signed the plea agreement. Subsequently, ATF revoked Fireworks by Girone's license.

In November 2000, after Fireworks by Girone's license was revoked and Pacitto had begun operating on the site under the new license for Vineland, ATF contacted Pacitto and informed her of its earlier inspection of Fireworks by Girone in July 1999 and the violations it found. In particular, these violations included "failure to maintain records of the daily magazine transactions for explosives" for approximately a two-week period in violation of 27 C.F.R. § 555.127. On December 20, 2000, ATF and Pacitto met to discuss these violations, and ATF instructed Pacitto on the requirements for compliance with federal explosives law.2

544 F.3d 512

On July 2, 2003,3 ATF conducted a safety walk-through inspection of Vineland, and it cited Vineland for two violations: (1) pre-loading trucks with explosives without a pre-loading variance; and (2) improperly storing fireworks. On July 2, 2004, ATF again conducted a safety walk-through inspection of Vineland, and it cited Vineland for three violations: (1) pre-loading trucks with explosives without a pre-loading variance; (2) improperly storing fireworks and high explosive bulk salutes; and (3) failing to keep proper records of fireworks and salutes. Pacitto signed the violations report, and on August 4, 2004, she met with ATF to discuss the violations in a "warning conference." Subsequently, ATF sent Pacitto a letter, stating: "You are reminded that future violations, repeat or otherwise, could be viewed as willful and may result in the revocation of your license."

On October 13, 2004, ATF again conducted a safety walk-through inspection of Vineland. The ATF inspectors found a number of violations, and on August 22, 2005, the Director of Industry Operations ("DIO") for the Philadelphia Field Division of ATF issued a notice of revocation of Vineland's license to manufacture explosives pursuant to 18 U.S.C. § 843(d). The DIO also issued a notice denying Vineland's application for a renewal of its license to import fireworks pursuant to 18 U.S.C. § 843(b).

On July 25, 2005, ATF inspectors conducted a safety walk-through inspection of Vineland's facility in Puerto Rico and found a number of additional violations. On December 2, 2005, the DIO amended the notices to include these additional violations. The amended notices set forth thirteen violations, each of which charged that Vineland had "willfully failed" to comply with federal laws and ATF regulations. We summarize the charged violations as follows:

(1) Willful failure to properly store explosive materials in violation of 18 U.S.C. § 842(j) and 27 C.F.R. §§ 555.29, 555.201, 555.203(d), 555.210, and 555.215. Vineland stored twenty-five pounds of deteriorated stars in a trailer that also contained deteriorated chemicals, and the trailer was not an approved type 4 magazine.

(2) Willful failure to properly store explosive materials in violation of 18 U.S.C. § 842(j) and 27 C.F.R. §§ 555.29 and 555.224. Vineland had three magazines within 200 feet of the trailer in count (1) and less than 300 feet from a road.

(3) Willful failure to properly store explosive materials in violation of 18 U.S.C. § 842(j) and 27 C.F.R. §§ 555.29, 555.210, and 555.215. On October 13, 2004, Vineland did not have "adequate locks, hoods[,] and hinges" on its storage containers.

(4) Willful failure to properly maintain records in violation of 18 U.S.C. § 842(f) and 27 C.F.R. § 555.127. Between July 2, 2003 and October 13, 2004, Vineland did not state the method it used to count explosive materials on ten occasions in its daily summary of magazine transactions.

(5) Willful failure to properly maintain records in violation of 18 U.S.C. § 842(f) and 27 C.F.R. § 555.127. On six occasions between July 1, 2004 and October 13, 2004, Vineland failed to enter the manufacturer's name or brand name of explosive materials, the total quantity of materials received in and removed from each magazine during the day, and the total remaining quantity at the end

544 F.3d 513

of the day in its daily summary of magazine transactions.

(6) Willful failure to properly maintain records in violation of 18 U.S.C. § 842(f) and 27 C.F.R. § 555.127. On thirty occasions between January and August 2004, Vineland committed the same violation as in count (5).

(7) Willful failure to properly maintain records in violation of 18 U.S.C. § 842(f) and 27 C.F.R. § 555.109(a). Between July 2, 2003 and October 13, 2004, Vineland did not properly mark 12 cannon shots with the correct name and location of the manufacturer.

(8) Willful failure to properly maintain records in violation of 18 U.S.C. § 842(f) and 27 C.F.R. § 555.123(b). Between July 2, 2003 and October 13, 2004, Vineland did not enter the proper records regarding the cannon shots mentioned in count (7).

(9) Willful failure to properly store explosive materials in violation of 18 U.S.C. § 842(j) and 27 C.F.R. §§ 555.201(f). Between July 9, 2004 and July 25, 2005, Vineland did not notify the local fire safety officials of the location and other information of the explosive materials at its facility in Puerto Rico.4

(11) Willful failure to properly maintain records in violation of 18 U.S.C. § 842(f) and 27 C.F.R. § 555.127. Between January 13, 2005 and January 17, 2005, Vineland did not enter a separate record stating the dates of distribution of explosive materials on two occasions at its facility in Puerto Rico.

(12) Willful failure to properly store explosive materials in violation of 18 U.S.C. § 842(j) and 27 C.F.R. § 555.215. Between July 9, 2004 and July 25, 2005, Vineland did not keep the area surrounding a magazine clear of brush and grass at its facility in Puerto Rico.

(13) Willful failure to post license in violation of 18 U.S.C. § 843(g) and 27 C.F.R. § 555.101. On July 26, 2005, Vineland did not have its license posted at its facility in Puerto Rico.

Vineland requested a hearing before an Administrative Law Judge ("ALJ"). The central question of the hearing was whether Vineland's violations were willful. For an entity to import, manufacture, or deal in explosive materials, it must have a license. See 18 U.S.C. § 843. However, an entity that has "willfully violated any of the provisions of this chapter [18 U.S.C. §§ 841 et seq.] or regulations issued hereunder" cannot obtain a license. Id. § 843(b)(2). If a licensee has violated any provision, including those provisions governing the way in which a licensee obtains its original license, ATF may revoke its license or deny the renewal application for its license. See id. § 843(a) ("Each license or permit shall be renewable upon the same conditions and subject to the same restrictions as the original license or permit[.]"); id. § 843(d) ("The Attorney General may revoke any license or permit issued under this section if in the opinion of the Attorney General the holder thereof has violated any provision of this chapter or any rule or regulation prescribed by the Attorney General under this chapter[.]"). Thus, ATF may deny the renewal of a license or revoke a license if the licensee has "willfully violated" the statutory provisions or ATF regulations. See id. § 843(a), (b)(2), (d).

On February 23, 24, and 27, 2006, an ALJ of the United States Environmental...

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11 practice notes
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    ...Stein's Inc. v. Blumenthal, 649 F.2d at 467; Lewin v. Blumenthal, 590 F.2d at 269 (8th Cir.1979)). In Vineland Fireworks Co. v. BATF, 544 F.3d 509 (3d Cir.2008), the United States Court of Appeals for the Third Circuit held that it was reasonable for the ATF to interpret "willful viola......
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    ...or otherwise not in accordance with law." Vineland Fireworks Co., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 544 F.3d 509, 514 (3d Cir. 2008). The parties agree that 14 C.F.R. Part 16 does not provide the agency with a standard for reviewing the Director's initial ......
  • Armament Servs. Int'l, Inc. v. Yates, CIVIL ACTION NO. 17-mc-10
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    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
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    ...synonymous with "plain indifference" to the legal requirements imposed by federal firearms laws. Vineland Fireworks Co. v. ATF, 544 F.3d 509, 517-18, n.16 (3d Cir. 2008).III. Discussion Respondents have moved for summary judgment contending that ATF was authorized to deny Petition......
  • Suydam v. U.S. Bureau of Alcohol, Tobacco, Firearms & Explosives, No. 2:11–cv–00055–JAW.
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • February 22, 2012
    ...with federal record-keeping regulations. See, e.g., Vineland Fireworks Co., Inc. v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 544 F.3d 509, 522 (3rd Cir.2008) (affirming finding of willfulness, applying GCA's willfulness standard to explosives case, despite bookkeeper's illness......
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11 cases
  • Borchardt Rifle Corp. v. Cook, No. CIV 08-1188 JB/WDS
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • February 27, 2010
    ...Stein's Inc. v. Blumenthal, 649 F.2d at 467; Lewin v. Blumenthal, 590 F.2d at 269 (8th Cir.1979)). In Vineland Fireworks Co. v. BATF, 544 F.3d 509 (3d Cir.2008), the United States Court of Appeals for the Third Circuit held that it was reasonable for the ATF to interpret "willful viola......
  • 41 North 73 West Inc v. United States Dep't Of Transp., No. 09-4810-ag
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 2, 2010
    ...or otherwise not in accordance with law." Vineland Fireworks Co., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 544 F.3d 509, 514 (3d Cir. 2008). The parties agree that 14 C.F.R. Part 16 does not provide the agency with a standard for reviewing the Director's initial ......
  • Armament Servs. Int'l, Inc. v. Yates, CIVIL ACTION NO. 17-mc-10
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • November 27, 2017
    ...synonymous with "plain indifference" to the legal requirements imposed by federal firearms laws. Vineland Fireworks Co. v. ATF, 544 F.3d 509, 517-18, n.16 (3d Cir. 2008).III. Discussion Respondents have moved for summary judgment contending that ATF was authorized to deny Petition......
  • Suydam v. U.S. Bureau of Alcohol, Tobacco, Firearms & Explosives, No. 2:11–cv–00055–JAW.
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • February 22, 2012
    ...with federal record-keeping regulations. See, e.g., Vineland Fireworks Co., Inc. v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 544 F.3d 509, 522 (3rd Cir.2008) (affirming finding of willfulness, applying GCA's willfulness standard to explosives case, despite bookkeeper's illness......
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