Petition for Writ of Certiorari — Stajos v. City of Lansing

Supreme Court brief1999

Ask Donna

What actually matters in this document.

Text

Supreme Cour

» U

FILED ”

no. @MB1I21¢5 JAN 25 1999

iN yy); OFFICE OF THE CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1999

WILLIAM JAMES STAJOS d/b/a AMERICAN

’ EAGLE FIREWORKS, INC.

Petitioner,

CITY OF LANSING and PEOPLE OF

THE STATE OF MICHIGAN

Respon dents.

ON PETITION FOR WRIT OF CERTIORARI TO

THE MICHIGAN SUPREME COURT

PETITION FOR WRIT OF CERTIORARI

AND APPENDIX

CONSTITUTIONAL LITIGATION

ASSOC IATES, P.C.

HUGH M. DAVIS, JR. (P 12555)

Counsel of Record

PATRICK M. EDWARDS (P 49665)

Attorneys for Petitioner

719 Griswold, Suite 1630

Detroit, Michigan 48226

Telephone: (313) 961-2255

Oo”

QUESTIONS PRESENTED

l. Can the State of Michigan’s fireworks statute, MCL

750243a, establish a scheme for the classification, design, labeling

and marking of consumer fireworks which is not substantially the

same, contradicts, and interferes with the counterpart Federal statute.

49 U.S.C. §5125(b)? Or is the State statute preempted under Federal

law?

II. Is the Michigan fireworks statute, MCL 750.243a,

unconstitutionally vague as lacking sufficient notice, arbitrary, and

capricious when the State statute classifies fireworks differently thai

the federal and nationally accepted classification scheme, when the

State statute uses ambiguous terms such as “of like construction” to

prohibit the possession of certain types of fireworks, and when the

statute contradicts itself as to whether State or Federal classification

schemes control?

There is no parent or subsidiary company to be listed under

Rule 9

TABLE OF CONTENTS

PAGE

EMD od owe ew wuneewneeeesueeee il

EE SS te SC ele a oS ee

TABLE OF AUTHORITIES ........... Vil

OPINIONS BELOW ............. ix

STATEMENT OF JURISDICTION ................. oc

CONSTITUTIONAL PROVISIONS INVOLVED = _ Xi

ees Ge Oe te tc e ese euwvesss >a

ST Sa SER RE Sar oY ein gm ge fa

I. THE CLASSIFICATION

SCHEME IN THE MICHIGAN

FIREWORKS STATUTE, MCL

750.243a. IS INVALID AS NOT

"SUBSTANTIVELY THE SAME"

AS THE PREEMPTIVE

FEDERAL REGULATIONS, 49

USC 5125(b), BECAUSE MCL

750.243a-d CONTAINS

DESCRIPTIONS,

CLASSIFICATIONS AND

RESTRICTIONS INCONSISTENT

WITH FEDERAL

RE Para ee eee ea 4

a. T h e

Fireworks

Classification

Scheme in_ the

Michigan

Fireworks Statute,

MCL 750.243a,

a aie iii iia

Contradicts and

Interferes with the

Federal Regulatory

Classification of

PS ne On ne aas eee awn 4

b. The List

of Forbidden

Chemicals and

Compounds in

M Cc L

750.243a(2)(d) is

Not Substantively

the Same and is in

Conflict with the

List of Forbidden

Chemicals Found

in the Federal

IR hoa char eee coe 9

3 T hee

Fireworks — Listed

in MCL 750.243a

Contain Numerous

Devices which are

not Regulated as

Fireworks or have

Different

Requirements than

the Preemptive

oo ee 10

d + ® €

Michigan

Fireworks Statute,

MCL 750.243a, is

Preempted by

Federal

Regulations

Pursuant to 49

yb oo oo aks sv bee 12

€. T hee

Federal Penal

Statute, 18 U.S.C.

§836, does not

Permit or

Encourage Local

Classification

ais ae ete 19

f. i oe

Improper

Classification

Scheme

Invalidates the

Entire Michigan

SP rE Pe er eee ne. 21

IT. THE MICHIGAN

FIREWORKS STATUTE, MCI

750.243a, IS VOID FOR

VAGUENESS ON ITS FACE

AND AS APPLIED ... 2

oe)

TABLE OF AUTHORITIES

Cases Page

Bell v. United States, 349 U.S. 81 (1955) ................. 29

Bouie v. City of Columbia, 378 U.S. 347 (1964) ............ 27

Capital Cities Cable v. Crisp, 467 U.S. 691 (1984) .......... 16

City of New York v. FCC, 486 U.S. 57 (1988) .............. 16

Gade v. National Solid Wasets Management Ass'n, 505 U.S. 88

(Free PCR ean oeekaaneese 14

Grayned v. City of Rockford, 408 U.S. 104 (1971) .......... 23

Jones v. Rath Pakcing Co., 430 U.S. 519 (1977) .............. 15

Morales v. Trans World Airlines, 504.US..374(1992).........14

Napier v. Atlantic Coast Line R-Co.,.272 ULS. 605 (1926) ...... 14

Parachristou vy. Cit of Jacksonville, 405 U.S. 156 (1972)... ... 23

Rice v. Santa Ie Elevator Corp., 331 U.S. 218 (1947)... 00.0... 15

Schneidewind v. ANR Pipeline Co.,.485 U.S. 293 (1988) ....... 13

Cohen v. Bredehoeft, 290 F.Supp 101 (D.C.Tex):

SUZ FDR GI. COs scien as ee eee eee 21

Colorado Public Utilities Comm'n v. Harmon,

951 F.2d 1571, 1580-(10th Cir. 1991). ................ 14, 15, 16

Colorado Pyrotechnic Ass'n v. Meyer, 740 F.Supp 792 (D.Colo.

be | PEE ECTS COT ERO Fre i ESS 17, 18

Stajos (American Eagle) v. City of Lansing,

221 Mich.App 223, 561 N.W.2d 116 (1997). ..............3, 16

Vii

Statutory and Constitutional Authority:

om FP eeererrrr rr er Tries eT erie ee 17, 18

“a Oh rr rarer eer es Se 8.9, 18

MCL 750.243a

ek, Pe ee aa bak vend awe eens eee 8, 18, 21, 22

- y By. b _: * Sa ean o mae rar Iver Caer a 8, 17

RE re a i a DEL og She aay eater 8,9, 18

16 C.F.R. section 1540 ............ an Coerersye eo

49 C.F.R. section 107.202 ...... ....... Perr ye ree 12

ee Se occ keke eee oe a

49.C.F.R. section 173.53 ..... - fi 5, 6, 16, 17

49 C.F.R. section 173.54... ace tay ie PER,

49 C.F.R. section 17356... . . 6.9

SAS. cece Temes Cie el 6 oc ce ee le et cveree ens 15

18 U.S.C. section 836...... A Pee oe.

29.U.S.. section.667......... ee) se reore

49 U.S.C. section 1804........... Ag Nak ee

49 U.S.C. section 5125...... eae ... 4, 12, 19, 20, 21

Vill

OPINIONS BELOW

The Michigan Court of Appeals issued a puplished opinion

in this case on January 24, 1997. Stajos (American Eagle) v. City

of Lansing, 221 Mich. App. 223, 561 N.W.2d 116 (1997).

(Stajos, App. infra, A-2). The Michigan Court of Appeals

denied rehearing on June 10, 1997. (Court of Appeals Case No.

178767). On August 28, 1998, the Michigan Supreme Court

denied the Stajos application for leave to appeal. (Michigan

Supreme Court Case No. 109912). Finally, On October 26,

1998, the Michigan Supreme Court denied the Stajos motion

for reconsideration. (Michigan Supreme Court Case No.

109912)(App. infra, A-1).

STATEMENT OF BASIS FOR JURISDICTION

The Petitioner seeks to invoke the jurisdiction of the Court by

seeking a Writ of Certiorari from the judgement of the Michigan

Supreme Court, denying reconsideration on October 26, 1998, of

federal and constitutional questions, when the Michigan State statute

in question, MCL 750.243a, is preempted by Federal Law and when

the State statute is repugnant to the United States Constitution.

Jurisdiction is conferred upon the Court to review the judgement and

order in question by Writ of Certiorari pursuant to 28 U.S.C.

§1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

STATEMENT OF THE CASE

On June 17, 1993, police officers of the City of Lansing

entered American Eagle Fireworks, Inc. (“American Eagle”),

the business establishment of Plaintiff William J. Stajos

(“Stajos”). The officers executed a warrant authorizing the

seizure of any and all fireworks “which either moved or report

when ignited.” Without further guidance, the officers seized all

the items which they believed to be illegal under the warrant.

Shortly thereafter, the officers destroyed the fireworks without

order from the court.

On June 28, 1993, Stajos filed a complaint seeking

injunctive relief and a declaratory judgment. (Ingham County

Circuit Court Case No. 93-75000-CZ, Hon. William E.

Collette). Stajos alleged that he was entitled to an injunction

to prevent the threat of further seizures, given the impending

July 4th fireworks season, and that he was entitled to

declaratory relief regarding the interpretation of the statute.

The complaint further asserted that there are a number of well-

defined and recognized categories of United States Department

of Transportation (“DOT”) common fireworks that are neither

specifically restricted nor specifically allowed by MCL

750.243a. (App. infra, A-14). Stajos alleged 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

DOT as class C common fireworks. Stajos alternatively argued

that MCL 750.243a was preempted by federal regulations or, as

a criminal statute, was void for vagueness as it related to the

five specifically enumerate categories of federal class C

common fireworks. (complaint).

On June 28, 1993 the circuit court issued a temporary

restraining order allowing Stajos to sell all fireworks not

specifically prohibited for use without a permit pursuant to

subsection (2) of the statute. The court stated that the statute

needed to be amended to clarify what fireworks may be

lawfully sold. (show cause hearing, ruling on TRO). Shortly

thereafter, the court permitted the People of the State of

Michigan to intervene as a party defendant because Stajos was

asking the court to construe a penal statute, and because any

ruling could affect pending criminal district court cases against

Stajos and others for selling illegal fireworks.

The court held an evidentiary hearing on April 18, 1994,

at which time Stajos produced two expert witnesses who

explained the different kinds of fireworks and how they work.

Dr. Roger Schneider, a chemistry professor, nationally

recognized combustible materials consultant, and an advisor to

the American Pyrotechnic Association (APA), testified that

APA Standard 87-1 has been adopted by the DOT through 49

C.F.R. §173.56 and by the Consumer Products Safety

Commission (“CPSC”) at 16 C.F.R. §1507 as the standard for

the classification and description of consumer fireworks. Dr.

Schneider further testified that the Michigan fireworks statute

was extremely ambiguous and that whoever wrote the statute

did not understand the fireworks business. (evidentiary

hearing, Schneider testimony). He testified that the entire

statute is "fraught with ambiguity and nonsense." (S/ajos, App.

infra, A-3). Insomuch as the Lansing enforcement officials

relied on definitions and advisories from the Michigan State

Police (MSP), the court specifically invited the City and the

Ingham County Prosecutor to produce a witness from the MSP.

(show cause hearing, June 28, 1993). The Defendants declined

to do so. Thus, the technical and evidentiary record supports

Stajos’s position and is unrebutted. Nevertheless, 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. (evidentiary

hearing, ruling from bench). The court later denied plaintiffs

motion for reconsideration.

Stajos appealed as of right, and the challenged opinion

was rendered on January 24, 1997. Srajos (American Lagle) v.

City of Lansing, 221 Mich. App. 223, 561 N.W.2d 116 ( 1997)

(Stajos, App. infra, A-2). The court denied the preemption

claim, reasoning that the federal regulations cited by plaintiff

only address the packaging and classification of fireworks for

interstate shipment and do not address the sale of fireworks

within a state. Further, the court found that 18 USC $836

indicates that the definitions of fireworks contained in the laws

of the respective states shall be applied. (Stajos, A pp. infra, A-

11). The court also denied the vagueness claim, holding that

the permitted fireworks are readily discernable from a cursory

reading of subsection (3). (Stajos, App. infra, A-13). r

Rehearing was denied by the Michigan Court of

Appeals on June 10, 1997. Thereafter, Stajos filed an

application for leave to appeal to the Michigan Supreme Court,

in which Stajos raised both the preemption and vagueness

arguments. On August 28, 1998, the Michigan Supreme Court

denied the Stajos application for leave to appeal. The order

Stated in full:

On order of the Court, the application |

for leave to appeal is considered, and it is |

DENIED, because we are not persuaded that the

questions presented would be reviewed by this

Court. |

Stajos filed a motion for reconsideration with the

Michigan Supreme Court, and again raised both the preemption

and vagueness issues. On October 26, 1998, the court denied

the Stajos motion, “because it does not appear that the order

was entered erroneously.” (App. infra, A-1).

ARGUMENT

I. THE CLASSIFICATION SCHEME

IN THE MICHIGAN FIREWORKS

STATUTE, MCL 750.243a, IS INVALID AS

NOT "SUBSTANTIVELY THE SAME" AS

THE PREEMPTIVE FEDERAL

REGULATIONS, 49 USC 5125(b),

BECAUSE MCL 750.243a-d CONTAINS

DESCRIPTIONS, CLASSIFICATIONS AND

RESTRICTIONS INCONSISTENT WITH

FEDERAL REGULATIONS.

a. The Fireworks

Classification Scheme in the

Michigan Fireworks _ Statute,

MCL 750.243a, Contradicts and

Interferes with the Federal

Regulatory Classification of

Fireworks.

The United States Department of Transportation

("DOT") had regulated both special display Class B and

consumer Class C fireworks. Following the 1976 Bicentennial,

and widespread concern regarding the safety of fireworks, the

United States Consumer Products Safety Commission ("CPSC")

was given partial jurisdiction over Class C consumer fireworks.

Thus, the interlocking federal regulatory scheme now has the

DOT regulating the transportation of both special display Class

B (now Div. 1.3) and consumer Class C fireworks (now Div.

1.4), while the CPSC regulates all other aspects of Class C

fireworks, including classification and packaging. The CPSC

does not regulate Class B special display fireworks, because

they are not considered to be consumer products. By contrast,

the United States Bureau of Alcohol, Tobacco and Firearms

(“BATF”) has jurisdiction for licensing the manufacturers and

dealers of Class B special display fireworks (now Div. 1.3).

The BATF has no jurisdiction over the Class B consumer

fireworks involved in this case.

On January 1, 1991, the CPSC promulgated more

detailed and preemptive regulations for the construction,

classification, definition, packaging, labeling and transportation

of consumer fireworks. The UPSC and the DOT abandoned the

old Class B and Class C categories, and instead, adopted the

United Nations international explosive classification scheme.

Under 49 C.F.R. §173.53, Class B special display fireworks are

now Classified as Division 1.3 fireworks (“Div. 1.3"), and Class

C consumer fireworks are classified as Division 1.4 fireworks

(“Div. 1.4"). (App. infra, A-25-26). Div. 1.3 display and Div.

1.4 consumer fireworks are defined in 49 C_F.R. §173.50(b), as

follows:

(3) Division 1.3 consists of explosives |

that have a fire hazard and either a minor blast

hazard or a minor projection hazard or both, but

not a mass explosion hazard.

(4) Division 1.4 consists of explosives

that present a minor explosive hazard. The

explosive effects are largely confined to the

package and no projection or fragments of

appreciable size or range is to be expected. An

external fire must not cause virtually

instantaneous explosion of almost the entire

contents of the package. (App. infra, A-24).

More specifically, the American Pyrotechnics

Association, Inc. (“APA”) has established the standard for

construction and approval of fireworks, novelties and theatrical

pyrotechnics, in APA Standard 87-1 (April, 1993

ed. )(Appellant’s brief on appeal to Michigan Court of Appeals,

Exhibit A). The APA Standard 87-1 describes the contents of

a particular type of fireworks, how it works, and sets limits on

the explosive contents. More importantly, APA Standard 87-1

classifies individual fireworks devices as either Div. 1.3 display |

fireworks or Div. 1.4 consumer fireworks. The definitions

established in APA Standard 87-1 is accepted and in

compliance with both the DOT and the CPSC regulations. 49

C.F.R. §§173.50-53, and 49 C.F.R. §173.56. (App. infra, A-24-

27).

The APA Standard 87-1 classifies the following

fireworks devices as Div. 1.4 consumer fireworks: firecrackers,

roman candles, missile-type rockets, sky rockets, bottle rockets,

wheels, cylindrical and cone fountains, mines and shells,

sparklers, and party poppers. In the present case, it is

undisputed that the fireworks were all classified and labeled,

under federal regulations, as Div. 1.4 consumer fireworks.

However, by contrast, the Michigan fireworks statute

establishes its own classification scheme that is in conflict with

the federal classification scheme. Indeed, the antiquated

Michigan statute, MCL, 750.243a, incorrectly classifies both

Div. 1.3 and Div. 1.4 fireworks, merges the two divisions, and

thoroughly obscures a proper and consistent interpretation of

the law. (App. infra, A-14-16). Under MCL 750.243a(1), the

definition section, mutant “Michigan Class B” and “Michigan

Class C” classes of fireworks are created:

(b) "Class B fireworks" means toy

torpedoes, railway torpedoes, firecrackers or

salutes that do not qualify as class C fireworks,

exhibition display pieces, aeroplane flares,

illuminating projectiles, incendiary projectiles,

incendiary grenades, smoke projectiles or

bombs containing expelling charges but without

bursting charges, flash powders in inner units

not exceeding 2 ounces each, flash sheets in

interior packages, flash powder or spreader

cartridges containing not more than 72 grains of

flash powder each, and other similar devices.

smoke devices, toy caps containing not more

than .25 gains of explosive mixture, toy

propellant devices, cigarette loads. trick matches, trick noise

makers, smoke candies, smoke pots, smoke grenades, smoke

signals, hand signal devices, Very signal cartridges, sparklers,

explosive auto alarms, and other similar devices. (App. infra,

A-14).

MCL 750.243a(1) conforms to neither the federal

regulatory scheme, the APA Standards, or other Michigan

statute sections, including the rest of MCL 750.243a.

Next, the second subsection of the statute, MCL

750.243a(2)(a-d), establishes the prohibitory part of the statute:

(2) Sale, Possession, transportation,

use, prohibited. 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, posses,

give, furnish, transport, use, explode, or cause to

explode any of the following:

* * *

roman candles, daygo bombs, bottle rockets,

whistling chasers, rockets on sticks, or other

fireworks of like construction.

(d) Fireworks containing an explosive or

inflammable compound or a tablet or other

device commonly used and sold as fireworks

containing nitrates, fulminates, chlorates,

exalates, sulphide of lead, barium, antimony,

arsenic, mercury, nitroglycerine, phosphorus, or

a compound containing these or other modern

explosives. (App. infra, A-14-15).

This subsection, MCL 750.243 a(2), prohibits fireworks

by name, chemical content, and description. The description of

fireworks in subsection a(2) is different than the descriptions

offered in Subsection a(1). Subsection a(2) makes no reference

to the definitions of fireworks established in subsection a(1),

the federal regulations, or the APA standards. Nevertheless,

Michigan courts, prosecutors and police officers repeatedly and

erroneously use the definitions of the so-called “Michigan Class

B” and “Michigan Class C” fireworks, and assume that those

classifications apply to the list of specifically restricted

fireworks in MCL 750.243a(2)(c) and (d). Thus, federal

consumer fireworks devices (Div. 1.4), such as roman candles,

missile-type rockets, sky rockets, bottle rockets, wheels,

cylindrical and cone fountains, and mines and shells are

identified by Michigan authorities as “Michigan Class B”

fireworks and then erroneously assumed to be the equivalent of

the more dangerous old federal DOT Class B (Div. 1.3 special

display fireworks). Those assumptions are in error and every

year Cause mass confusion in the transportation, possession, and

sale of fireworks in Michigan.

Next, as the counterpart of prohibitory subsection a(2),

subsection MCL 750.243a(3) creates a group of exceptions to

the prohibitions. (App. infra, A-15-16). MCL 750.243a(3)(a-

f) lists numerous devices as exceptions to the definitions and

restrictions in the first two subsections of the statute. Yet, many

of the devices listed and exempted in subsection a(3)(a-f) are

not fireworks devices under the federal classification system.

Then, MCL 750.243a(3)(g), the out of state sales exception,

refers and specifically adopts the federal DOT regulations.

Thus, part a (3)(g) conflicts with the definition of “Michigan

Class A and Class B” fireworks established in MCL

750.243a(1) because any fireworks shipped under part (g) must

be classified and treated pursuant to the DOT regulations.

Similarly, MCL 750.243c, MCL 750.243d, and MCL

480.11 all conflict with the definitions of “ Michigan Class B”

and “Michigan Class C” in MCL 750.243a(1). MCL 750.243c,

requires that all intrastate transportation of "fireworks" be in

"accordance" with DOT regulations. (App. infra, A-19). MCL

750.243d(b) requires that fireworks be stored at a distance from

inhabited buildings, railways and highways, which is

established under DOT regulations. Likewise, MCL 480.11 er

seq., the Michigan Motor Carrier Safety Act, adopts the federal

regulations for the definition, classification, description, and

packaging of Div 1.4 explosives (old DOT Class C). Thus, this

Statute conflict with the “Michigan Class C and Class B”

fireworks defined in MCL 750.243a(1).

Finally, the federal regulations and APA Standard 87-1

include the following consumer devices which are nowhere

enumerated in the Michigan statute: mines and shells,

illuminating torches, wheels, ground spinners, aerial spinners,

other devices producing unique effects, combination items

producing one or more of the effects enumerated, and any new,

old, different or unique items submitted for classification

pursuant to 49 C.F.R. §173.56(b).

b. The _ List of Forbidden

Chemicals and Compounds in

MCL __750.243a(2\(d)_ is Not

Substantively the Same and Is in

Conflict with the List of

Forbidden Chemicals Found in

the Federal Regulations.

49 C_F.R. §173.54 (forbidden explosives)((App. infra,

A-26), specifically sets forth the types of compounds which are

not ordinarily acceptable in any explosives, including some

explosive types of fireworks. 49 C.F.R. §173.56 sets forth the

procedures for identifying, defining and classifying new

explosive devices. Thus, MCL 750.243a(2)(d) is preempted

insofar as it purports to prohibit different chemicals and

compounds.

The enumeration of prohibited chemicals in the

Michigan statute is set forth in MCL 750.243a(2)(d). The

preemptive federal regulations are found at APA 87-1, Table

3.6-1, the forbidden explosive prohibitions of the DOT (49

C.F.R. §173.54) and the prohibited chemicals under the CPSC

(16 C.F.R. §1507.2). A comparison of the federal regulations

indicates that the following chemicals and compounds are

proscribed by the Michigan statute, but not by the federal

regulations: nitrates, fulminates, oxalate, sulfides of lead,

barium, antimony, the exceptions to the use of chlorates under

the federal regulations, 16 C.F.R. §1507.2(c), and the

exceptions to the use of phosphorous (16 C.F.R. §1507.2(g)).

Thus, the Michigan statute 1s at fatal variance with the

applicable federal regulations in this area also.

. The Fireworks Listed in

MCL 750.243a Contain

Numerous Devices which are

not Regulated as Fireworks or

have Different Requirements

than the Preemptive Federal

System.

MCL 750.243a(1)(b) refers to the following devices as

"Michigan Class B," even though they are no longer considered

to be fireworks and/or have no meaning within the APA or

federal classification system: railway torpedoes, aeroplane

flares, smoke projectiles or bombs containing expelling charges

but without bursting charges, flash powder or spreader charges

containing not more than 72 grains. Similarly, MCL

750.243(a)(1)(c) defines as "Michigan Class C" fireworks the

following items which are not considered to be fireworks under

the federal system: toy smoke devices, toy propellant devices,

smoke candies, smoke pots, smoke grenades, smoke signals,

hand signal devices, and very signal cartridges.

Next, the prohibition subsection of the Michigan statute,

MCL 750.243a(2), prohibits a number of devices which are not

consumer fireworks or not fireworks at all under the federal

—— ee |

scheme: blank cartridges, blank cartridge pistols, toy cannons,

toy canes or toy guns in which explosives are used, and

unmoored and unmanned balloon requiring fire.

Further, the following items are listed under MCL

750.243a(3) as exceptions to the prohibitions in the first two

subsections of the paragraph, but are not fireworks items under

the federal system: signal flares, blank cartridges, and

emergency signals.

Even descriptions of the Michigan unrestricted

fireworks (so-called “Michigan Class C”) in MCL

750.243a(3)(a-e), differ in their construction and labeling

requirements from the federal regulations and APA Standard

87-1. MCL 750.243a(3) allows:

a. Toy pistols, etc., no longer regulated as

fireworks in the federal system;

b. Sparklers are limited to .0125 pounds burning

portion, whereas the federal regulations allow

up to 100 grams burning portion and set forth

contents and wire standards. APA 87-1:

C. Limits flitter sparklers to paper tubes not

exceeding 1/8 inch in diameter. The federal

regulation has no such provision. APA 87-1;

and

d. Allows toy snakes not containing mercury in

cardboard boxes with no more than 12 per box

and specifically labeled. Insofar as this is a

fireworks item, federal regulations do not

require these packaging, content and labeling

restrictions. APA 87-1 (glow worm).

It is obvious that the Michigan fireworks statute does

not comprehend modern consumer fireworks and the

comprehensive federal and internationa! classification system

which covers them. The statute requires a tortured reading of

its various Categories and descriptions, along with the use of

vague terminology ("other similar devices", "other fireworks of

like construction", “other modern explosives"). The merchant

is at the mercy of any constable's interpretation. The

Defendants and other law enforcement officials in Michigan

are preventing merchants from selling federally approved

consumer fireworks not restricted for use in Michigan pursuant

to MCL 750.243a(2)(c), resulting in repeated prosecution and

the confiscation of commercial stock. That is the precise

reason that the federal classification scheme 1s mandatorily

preemptive.

d. The Michigan Fireworks

Statute, MCL 750.243a, is

Preempted by Federal

Regulations Pursuant to 49 USC

~ §125(b).

The preemptive effect of the regulations under the

Hazardous Materials Transportation Uniform Safety Act

(HMTA) of 1990 was strengthened in 1992, by adding two new

subsections to 49 U.S.C. §5125 (App. infra, A-20), to preempt

any requirement of a state, political subdivision or Indian tribe

if the non-federal requirement is not "substantively the same"

as any provision of the HMTA or any federal regulation issued

under the HMTA at 49 C_F.R. §107.202(a), regarding: 1) the

designation, description and classification of hazardous

materials; and 2) the packing, repacking, handling, labeling,

marking and placarding of hazardous materials.

"Substantively the same" is defined at 49 C.F.R.

§107.202(d) as: "Conforms in every significant respect to the

Federal requirement. Editorial and other similar de minimis

changes are permitted." Increased safety through uniformity

motivated Congress to preempt these areas, even in intrastate

commerce:

Congress agreed that these subject areas should

be Federally preempted. The HMITUSA

amended section 105 of the HMTA to explicitly extend the

Secretary's jurisdiction to cover all intrastate commerce. 57

Fed. Reg. 20425 (1993).

Consistent with that congressional mandate, it Is the

position of the DOT Research and Special Programs

Administration (RSPA) that, as regards the five covered areas:

National uniformity is critical. Therefore, in

those areas, the Department of Transportation

has determined what requirements are necessary

for the safe transportation of hazardous

materials. Any additional requirements, in

excess of the Federal requirements, would not

be "substantively the same," and would be

preempted. 57 Fed. Reg. 20425-26.

It would be difficult to find a clearer statement of preemption.

Insofar as the Michigan statute defines and regulates consumer

fireworks differently than federal regulations, or includes items

that are not fireworks devices under the federal regulations, it

is preempted on its face.

Against the above background of conflicting state and

federal fireworks classification, Schneidewind v. ANE Pipeline

Co, 485 U.S. 293, 299-300 (1988), is controlling because of the

specific expression of congressional intent. In the case at bar,

the preemption is explicit. 49 U.S.C. §1804(a)(4)(A) provides:

Except as provided in subsection (b) of this

section and unless otherwise authorized by

Federal law, any law, regulation, order, ruling,

provision or other requirement of a State or

political subdivision thereof or an Indian tribe,

which concerns a subject listed in subparagraph

(B) and which is not substantively the same as

any provision of this Act or any regulation

under such provision which concerns such

subject, 1s preempted.

Such "covered subjects" include "[tlhe designation,

description, and classification of hazardous materials." 49 USC

1804(a)(4)(13)\(1). For purposes of these "covered subjects," it

does not matter that the state classification scheme can be

administered without damaging the ability of the federal

government to classify. The key term is “concerning.” This

term is defined as “[t]o pertain to, relate, or belong to; be of

interest or importance to; have connection with; . ..” BLACK’S

LAW DICTIONARY 289 (6th ed. 1990). The Supreme Court has

determined that when the term "relating to" is utilized, any state

law which "has a connection with or reference to" the subject

matter is "relating to" it. Morales v. Trans World Airlines, 504

U.S. 374, 383 (1992).

Here, the object in question is the classification and

description of fireworks. It matters not that the state seeks to

classify in order to create criminal offenses. Preemption

analysis turns not on whether federal and state laws "are aimed

at distinct and different evils,” but whether they “operate upon

the same object". Gade v. National Solid Wastes Management

Ass'n, 505 U.S. 88, 105-06 (1992) (quoting and interpreting

Napier v. Atlantic Coast Line R Co, 272 U.S. 605, 612 (1926)

(other citations omitted). "[P]Jart of the preempted field is

defined by reference to the purpose of the state law 1n question,

another part of the field is defined by the state law's actual

effect." Gade, 505 U.S. at 105. Thus, the fact that the federal

laws are concerned with uniformity and safety and state law is

concerned with safety and defining criminal offenses provides,

rather than negates, the basis for preemption.

It is beyond dispute that the state law's effect 1s to result

in a classification system which is not substantively the same

as the federal scheme. The necessitated "high degree of

uniformity of Federal, State, and local laws is required in order

to promote safety and to encourage the free flow of commerce"

with regard to materials regulated by the Act. Colorado Public

Utilities Comm v. Harmon, 951 F.2d 1571, 1580 (10th Cir.

1991)(quoting H.R.Rep. No. 444 (Part | ), 10Ist Cong., 2d

Sess, at 22 (1990). This uniformity is "critical" in areas such as

classification. Harmon, 951 F.2d at 1580-81 (quoting 136

Cong.Rec. Hi3645-03 (remarks of Rep. Hammerschmidt)).

The uniformity of classification 1s necessitated due to

the fact that classification systems which vary by region or state

create too great of risk as to confusion. Southern Pacific

Transportation v. Public Service Comm of Nevada, 909 F.2d

352, 358 (9th Cir. 1990); Harmon, 951 F.2d at 1582-83. Such

confusion tends to interrupt the free flow of commerce in

Michigan and in other jurisdictions. /d. At present, the

interruption of commerce into, within, and out of Michigan is

demonstrated by the repeated and inconsistent prosecution of

Plaintiffs and other fireworks dealers.

With regard to "covered areas," including classification,

Congress, required any state laws to be "substantially similar"

to the federal laws. Congress has clearly shown its willingness

to designate "covered areas" to have preclusive effect,

regardless of conflict, in areas other than hazardous materials.

Occupational Safety and Health Act, 29 U.S.C. §667 (1982);

Securities and Exchange Act of 1934, 15 U.S.C. §78bb(a)

(1988): Employee Retirement Income Security Act, 29 U.S.C.

§144(1) (1982).

Similarly, in Jones v Rath Packing Co, 430 U.S. 519

(1977), the Court found that Congress’ express intent to prohibit

the imposition of "[m]arking, labeling, packaging, or ingredient

requirements in addition to, or different than, those" under

federal legislation required preemption, even if the state laws

supplemented, rather than conflicted, with the federal

legislation.

The rationale for such limits on state power is aptly

stated in Rice v Santa Fe Elevator Corp, 331 U.S. 218, 234

(1947):

Congress did more than make the Federal Act

paramount over state law in the event of

conflict. It remedied the difficulties which had

been encountered in the Act's administration by

terminating the dua! system of regulation.

When there 1s such a statement of preemptive intent, it

is unnecessary to analyze whether "there is an actual conflict

between federal and state law. . . or whether compliance with

both federal and state standards would be_ physically

impossible." City of New York v. FCC, 486 U.S. 57, 65-66

(1988). This 1s because Congress and/or administrative bodies,

pursuant to enabling legislation, have made the subject its

"exclusive domain". Capital Cities Cable v. Crisp, 467 U.S.

691 (1984). This is the case with federal fireworks

classification, designation, description, labeling and marking.

If such classifications are not adhered to uniformly, the

confusion will have a negative impact on the safety as well as

disrupting interstate commerce.

In Stajos (American Eagle) v. City of Lansing, 22)

Mich. App. 223, 561 N.W.2d 116 (1997), the opinion appealed

from herein, the state courts have avoided the preemption issue

by finding that:

[t]here is no preemption because the federal

regulations cited by plaintiff only address the

packaging and classification of fireworks for

interstate shipment and do not address the sale

or use of fireworks within a state. Cf. Colorado

Pyrotechnic Ass'n v Meyer, 740 F Supp 792 (D

Colo, 1990).

The court found, without evidence or analysis, that the

separate Michigan scheme has no effect on the federal purpose.

That finding is erroneous for several reasons. First, 49 C.F.R.

§173.53 specifically addresses the question of “state or local

laws, ordinances or regulations not pertaining to the

;

linked Ai AS oe a,

transportation of hazardous material” in changing over to the

new international classification scheme:

Where the classification system in effect

prior to January 1, 1991, is referenced in state or

local laws, ordinances or regulations not

pertaining to the transportation of hazardous

material, the following table may be used to

compare old and new hazard class names:

[Division 1.4 equals Class C explosives]. 49

C.F.R. §173.53. (App. infra, A-25-26).

Thus, 49 C.F.R. §173.53 clearly refutes any claim that the

federal regulations are preemptive only when applied to

interstate transportation issues. Indeed, §173.50 et seq., deals

exclusively with the definitions, classification and packaging

for Class | explosives, without any reference to transportation.

(App. infra, A-25-26).

Second, the classification scheme under MCL

750.243a(1) is internally in conflict with the specific provisions

of MCL 750.243a(3)(g) as it relates to interstate transportation,

and MCL 750.243c, relating to intrastate transportation, both of

which specifically adopt the DOT regulations. Therefore, it

creates two classification schemes within the same statute.

Third, the Michigan Hazardous Substances Act, MCL

286.463, et seq., and the Michigan Motor Carrier Safety Act,

MCL 480.15(a), specifically adopt the federal regulations for

the definition, classification, description and packaging of Div.

1.4 explosives. Thus, the consumer fireworks classification

scheme under MCL 750.243a(I)\(c) is not only preempted by the

federal regulations and in conflict with other provisions of the

same statute, it is in conflict with the provisions of at least two

other state statutes.

Further, the Stajos court’s reliance on Colorado

Pyrotechnic Association v. Meyer, is misplaced for the several

reasons. The case concerned the question of out of state sales,

comparable to MCL 750.243a(3)(g), rather than the question of

the classification scheme. The case involved only the question

of the likelihood of success on the merits for the purpose of a

preliminary injunction, rather than a final ruling. Finally,

(‘olorado Pyrotechnic preceded the new and more stringent

federal preemptive regulations as it relates to fireworks put into

effect on May 13, 1992 and thus turned on the question of

whether or not the local law was "inconsistent" under the

Hazardous Materials Transportation Act of 1974, as opposed to

the "substantively the same" standard set forth under the

HTUMSA set forth in the authorities cited above.

The disruptive effect on commerce by the classification

scheme in MCL 750.243a(l) is that the same consumer

fireworks device is subject to a different classification every

time it is moved into, out of, or around Michigan, if it 1s a

restricted item under MCL 750.243a(2)(c), [fireworks, rockets,

roman candies and whistling chasers] or any other device “of

like construction” claimed by the local fire marshal to be

prohibited. Please consider the following sequence. First,

these devices are federal consumer (Div. 1.4) fireworks (minor

hazard) while being shipped into Michigan, pursuant to MCL

286.463, ef seg., and MCL 480.11, ef seg., as well as 49 U.S.C.

§5125. When they come to rest in Michigan and are put into

storage by a wholesaler licensed under MCL 750.243b, they

suddenly become "Michigan Class B" fireworks pursuant to

MCL 750.243a(1)(b) and MCL 750.243a(2)(c), and must be

treated as dangerous explosives. Then, when they are moved

from the wholesaler to a retailer in intrastate commerce, they

again become federal Div. 1.4 consumer (minor hazard)

fireworks pursuant to the transportation provision of MCL

750.243c. Finally, when they come to rest at the retailers, they

again become "Michigan Class B" and are subjected to the

special dangerous explosive storage requirements of MCL

750.2434.

It is impossible for the interstate or intrastate shipper to

know what devices will be considered "Michigan Class B" and

therefore be subjected to different requirements than all other

consumer fireworks. The above scenario is the reason that

national uniformity is demanded by the mandatory preemption

of 49 U.S.C. §5125.

e. The _ Federal _ Penal

Statute, 18 U.S.C. §836. does

not Permit or Encourage Local

Classification Schemes.

The Michigan Court of Appeals found that 18 U.S.C.

§836 can be relied on to allow a state classification scheme for

fireworks which is not substantively the same as the preemptive

federal regulatory scheme. 18 U.S.C. §836 states:

Whoever, otherwise than in the course of

continuous interstate transportation through any

State, transports fireworks into any State, or

delivers them for transportation into any State,

or attempts to do-so, knowing that such

fireworks are to be delivered, possessed, store,

transhipped, distributed, sold, or otherwise dealt

with in a manner or for a use prohibited by the

laws of such State specifically prohibiting or

regulating the use of fireworks, shall be fined

under this title or imprisoned not more than one

year, or both.

This section shall not apply to a common carrier

Or contract carrier or to international or

domestic water carriers engaged in interstate

commerce or to the transportation of fireworks

into a State for the use of Federal agencies in

the carrying out or the furtherance of their

operations.

In the enforcement of this section, the

definitions of fireworks contained in the laws of

the respective States shall be applied.

The Stajos court stated:

Further, 18 USC 836 imposes criminal penalties

on a person who knowingly transports fireworks

‘in a manner or for a use prohibited by the laws

of such state specifically prohibiting or

regulating the use of fireworks.’ This provision

also indicates that the definitions of fireworks

contained in the laws of the respective states

shall be applied. It 1s thus apparent that the

federal regulations contemplate that states are

not preempted from regulating the intrastate

sale and use of fireworks.

That contention is erroneous for several reasons. First, Stajos

does not argue that states cannot regulate the sale and use of

fireworks, only that they may not erect a separate and different

classification, design and labeling scheme.”

Second, 18 U.S.C. §836 1s not concerned at all with the

definition and classification of hazardous materials and makes

no mention of classes. Consequently, it only forbids the

intentional transportation of fireworks into a state with the

knowledge that they are to be used in violation of a valid state

regulatory scheme, regardless of class. Since the Michigan

regulatory scheme is invalid because of the preemption of

classification pursuant to 49 U.S.C. §5125, the criminal statute,

18 U.S.C. §836, does not apply.

Third, 18 U.S.C. §836 went into effect on July 1, 1954.

There are few reported cases relating to the statute, none of

them relating to classification. By contrast, the amendments in

the federal HMTUSA went into effect on May 13, 1992.

Consequently, the antiquated Church Act (18 U.S.C. §836)

cannot be said to in any way control or effect classification

preemption under federal law.

Fourth, the Church Act only prohibits the intentional

interstate importation of fireworks into a state with a valid

regulatory scheme with the knowledge that they will be used

(not sold, transported or stored) in violation of that state's valid

regulatory scheme. Because Michigan allows the possession,

sale and use of all fireworks under MCL 750. 243a(3)(g)

(interstate sales) and MCL 750.243b (permits), it is impossible

for a commercial dealer to transport fireworks into the State of

Michigan with the knowledge that they will be "used" in

violation of the Michigan statute. There are no per se illegal

fireworks under Michigan law. Thus, reliance on 18 U.S.C

§836 to justify a separate classification scheme is misplaced.

Another point of authority frequently raised to justify

conflicting local regulations is Cohen v. Bredehoeft, 290

F.Supp. 101 (D.C. Tex.); 402 F.2d 61 (1968), which upheld a

total prohibition ordinance in Houston, Texas. However.

Cohen is irrelevant to the instant case. It did not address

classification. Michigan can ban fireworks, but cannot create

a separate classification scheme. Regardless, Cohen was

decided in 1968. It predated the specific congressional intent

now found in 49 U.S.C. §5125, effective May 13, 1992. Thus.

the element lacking in Cohen of a clearly manifested

congressional intent to displace local laws is now fulfilled,

particularly as it relates to classification.

f. The Improper

Classification Scheme Invalidates

the Entire Michigan Statute.

The final question is whether the Michigan classification

scheme is so pervasive and is so conflicting with the federal

regulatory scheme that every part of the state statute is affected

by those defects.

Obviously, MCL 750.243a(1)-(3) are invalid because

subsection (1) is the nonconforming classification scheme

itself; subsection (2) contains prohibitions which do not refer

to class and are, therefore, incomprehensible; subsection (3)

contains allowable exceptions which not only do not refer to

class, but also contain specifications and devices which are

different than the federal regulations or devices not contained

within the federal regulations. Thus, section “a” 1s invalid.

Next, MCL 750.243b (permits) is invalid as it relates to

consumer fireworks because it contains no reference to class

under either state or federal regulations, but refers back to the

prohibition section of MCL, 750.243a(2), which itself contains

no reference to the class of the regulated devices, refers to non-

fireworks devices and neglects large number of recognized

consumer devices. Thus, section “b” is invalid.

MCL 750.243c (intrastate transportation) properly adopts

the federal regulations, but conflicts with MCL 750.243a(\),

which establishes a separate classification scheme under the

State statute.

In summary, every section of MCL 750.243a-d 1s affected

by the classifications and definitions found in MCL

750.243a(1). It is therefore entirely invalid.

II. THE MICHIGAN FIREWORKS

STATUTE, MCL 750.243a, IS VOID FOR

VAGUENESS ON ITS FACE AND AS

APPLIED.

The Michigan fireworks statute, MCL 750.243a, is

unconstitutionally vague as a penal statute under the Due

Process Clause of the Fourteenth Amendment inasmuch as it

uses regulatory language and descriptions which the citizen,

constable, and court cannot sufficiently interpret to know what

iS Or is not a violation of the law. The result is arbitrary and

discriminatory enforcement of the law. Three major vagueness

problems exist within the statute. First, the Michigan fireworks

classification scheme directly contradicts the federal fireworks

regulatory scheme. Second, in defining and prohibiting certain

types of fireworks, the Michigan statute uses the terms “and

other similar devices,” “or other fireworks of like

construction,” and “or other modern explosives.” These vague

phrases are used to define and prohibit types of consumer Div.

1.4 fireworks that are not otherwise defined or prohibited by the

statute. Third, the three separate subsections of the statute are

themselves contradictory, and, as admitted by the Srajos court,

an interpretation or reliance on one subsection necessarily

leaves another subsection surplusage.

The rule of law surrounding the issue of a statute being

void for vagueness is well established. The law is

unconstitutionally vague if the ordinary person cannot

reasonably know what action a statute prohibits. Papachristou

v. City of Jacksonville, 405 U.S. 156, 162 (1972). Additionally,

to be constitutional, the law must be properly defined so as to

prevent erratic and capricious enforcement by the police,

prosecutor, and courts. /d. The rule was eloquently expressed

by Justice Marshall in Grayned v. City of Rockford, 408 U.S.

104, 108-09 (1971):

It is a basic principle of due process that

an enactment is void for vagueness if its

prohibitions are not clearly defined. Vague

laws offend several important values. First,

because we assume that man is free to steer

between lawful and unlawful conduct, we insist

that laws give the person of ordinary

intelligence a reasonable opportunity to know

what is prohibited, so that he may act

accordingly. Vague laws may-trap the innocent

by not providing fair warning. Second, if

arbitrary and discriminatory enforcement is to

be prevented, laws must provide explicit

standards for those who apply them. A vague

law impermissibly delegates basic policy

matters to policemen, judges, and juries for

resolution on an ad hoc and subjective basis,

with the attendant dangers of arbitrary and

discriminatory application. (footnotes omitted)

Stajos submits that the vague language of the operative

sections of the Michigan statute, MCL 750.243a, fail to give

them and their customers "fair notice" of the prohibited conduct

and has encouraged erratic and arbitrary law enforcement.

(App. infra, A-14). The vagueness of the statute arises from

three separate errors in the construction of the statute.

First, as discussed, the Michigan statute has established its

own classification scheme, “Michigan Class B and C”

fireworks, which is directly at odds with the mandatorily

preemptive federal classification scheme. See supra part I.a.

MCL 750.243a(1)(b) defines firecrackers and other similar

devices as Class B fireworks. Then, MCL 750.243a(1)(c)

defines smoke devices, toy caps, cigarette loads and other

innocuous devices, which are not labeled as fireworks under

federal regulations, as Class C fireworks. In contrast, the DOT

and CPSC defines firecrackers, roman candles, and rockets as

Div.1.4 consumer fireworks. Prior to 1991, under federal

regulations, firecrackers, roman candles, bottle rockets and

other like consumer fireworks were classified as DOT Class C

consumer fireworks. Special display fireworks are now labeled

as Div. 1.3 fireworks, and prior to 1991, were labeled DOT

Class B fireworks. 49 C.F.R. §173.50. (App. infra, A-24). The

result of the contradictory Michigan Class B and C

classification scheme is that many people in Michigan,

including police officers, prosecutors and judges, mistakenly

believe that consumer fireworks, such as firecrackers, roman

candles, and rockets, are the more dangerous Div. 1.3 (old

DOT Class B) special display fireworks.

The second major problem with the Michigan fireworks

statute 1s the vague phrases used in the definition and

prohibition subsections of the statute. MCL 750.243a(1)(b)

includes in its definition of "Class B fireworks" the phrase "and

other similar devices." (App. infra, A-14). Similarly, the

definition of "Class C fireworks" under subsection a(1)(c) also

includes the phrase "and other similar devices.” Then, the

prohibition subsection of the statute, MCL 750.243a(2)(c),

explicitly prohibits “[f]irecrackers, torpedoes, skyrockets, . . .

rockets on sticks, or other fireworks of like construction.”

Finally, the list of prohibited chemicals under subsection

a(2)(d) lists the prohibited chemicals and ends with the phrase

“or a compound containing these or other modern explosives."

The use of these ambiguous phrases to define and prohibit

fireworks renders the Michigan statute void for vagueness on

its face. Indeed, the Stayos court stated in a footnote that “[f]or

purposes of clarity, the Legislature may wish to consider

rewriting the statute.” Nevertheless, the Stajos court conducted

a convoluted analysis of the statute and concluded that “[{a]s

stated by the prosecutor in its brief on appeal, ‘Although the

fireworks statute is not a model of clarity, it passes

constitutional muster.’”

The Michigan State Police (“MSP”) also find that the

Statute is not a model of clarity. The MSP uses the phrase “of

like construction,” in the prohibitory subsection MCL

750.243a(2)(d), to prohibit fireworks not otherwise prohibited.

The MSP annually misinforms local police and fire

enforcement officials that the "rule of thumb" is that fireworks

which "move, give off an audible report or go into the air" are

prohibited for use in Michigan. (Bulletin 22, Revised January,

1994)(Appellant’s brief in support of application for leave to

appeal, Exhibit 2). First, the MSP is not given authority under

the statute to define prohibitive fireworks. Second, the

prohibitory description of “anything that moves, gives off an

audible report, or moves into the air” has been an invitation to

mischief and arbitrary enforcement because it is applicable in

some measure to all consumer fireworks devices, not just those

specifically prohibited by the statute. In fact, this “rule of

thumb” applies to fireworks specifically allowed by statute

such as cones and fountains, which shoot a shower of sparks

upward for varying distances. MCL 750.243a(3)(d). (App.

infra, A-15). In actuality, items of like construction to "sky

rockets, bottle rockets, whistling chasers, rockets on sticks" are

devices which are driven by their own power away from the

point of launch and stabilized either by a stick or fins. The

mere "going into the air" indicates nothing about similarity of

construction and does not address the dangers which led the

legislature to restrict their use.

Similarly, "firecrackers, torpedoes, [and]. . . daygo bombs

_.." are ostensibly the source of the claimed prohibition of

devices that make "an audible report." According to this

standard, almost all consumer fireworks should be restricted,

because most of them make an "audible" report. Trick noise

makers, caps, pistols and cannons, which all make an audible

noise, are all allowed by the statute for unrestricted use. MCL

750.243a(3\(b). It is the perceived function or effect which has

wrongly been used to determine the prohibition, not likeness of

construction.

ete »

Mines and shells are not restricted fireworks under the

Michigan statute, but they are prohibited under the MSP “rule

of thumb” because they are erroneously perceived to be “of like

construction” to bottle rockets and sky rockets. In fact,

according to the unrebutted expert testimony given by Dr.

Roger Schneider in the trial court, mines and shells are

projectiles which go a limited distance straight into the air and

then either burn or emit a shower of sparks (like a fountain).

(evidentiary hearing, April 18, 1994, Schneider testimony).

They are not items “of like construction” to rockets or missiles

inasmuch as they are not self-propelled and are not guided by

fins, sticks or tails. Further, they do not have a similar effect to

missiles or rockets in that they go only a short distance into the

air and do not travel away from the point of launch. Thus, the

expansion of the phrase "of like construction" to mean "like

effect" represents an impermissible judicial enlargement of a

criminal statute. Cf. Bowie v. City of Columbia, 378 U.S. 347

(1964).

The third major problem with the Michigan fireworks

statute is that the three separate subsections of the statute are

themselves contradictory and reliance on one subsection

necessarily leaves another subsection surplusage. As stated by

the court of appeals below:

The prosecution argues that plaintiff's

proposed reading of the statute that a person may

sell, possess, and use all fireworks except the

items mentioned in subsection (2)(c) is erroneous

because it renders subsection (3)(a)-(f) nugatory.

The prosecution nevertheless concedes that this

case presents the unfortunate situation where a

part of the fireworks statute will become

surplusage regardless of which party's

interpretation this Court ultimately adopts, i.e.,

the prosecution admits that its suggested

interpretation that the phrase ‘fireworks

containing an explosive or inflammable

compound’ forbids all fireworks such that the remainder of

subsection (2)(d) and all of (2)(c) become surplusage. The

prosecutor nevertheless contends that its interpretation

does far less violence to the statute than the interpretation

offered by plaintiff. (Stajos, App. infra, A-7-8)(emphasis

added).

In fact, Stajos merely argued for a strict construction of the

statute, prohibiting only the specifically enumerated items.

Obviously, the phrase “containing an explosive or

inflammable compound” not only includes all fireworks, but

also includes most every day commercial items. Everything is

“inflammable” under the appropriate conditions. To solve this

problem, the Srajos court engaged in a very expansive

interpretation of the statute:

Also, just because the items prohibited in

subsection (2)(c) such as firecrackers would

also be prohibited by subsection (2)(d) because

they contain an explosive or inflammable

compound, does not necessarily make

subsection (2)(c) nugatory. Rather, we consider

the language used to have been the Legislature's

way of providing a list of specific well-known

fireworks it wanted prohibited and then adding

subsection (2)(d) to catch any other non-

excepted fireworks using very expansive and

overlapping language. Our interpretation of the

statute merely requires one to imply in the

phrase ‘any and other’ at the end of subsection

(2)\(c) and before subsection (2)(d). Doing this

produces a result that is consistent with the

overall language of the statute and effects the

object of the statute. (Srajos, App. infra, A-

8 (emphasis added).

* * *

Therefore, it is not necessary to determine

exactly what ‘other similar devices,’ ‘other

ie) ab

fireworks of like construction, or ‘other modern

explosive" mean to know what fireworks are

prohibited for sale without a permit. Indeed, the

other fireworks of like construction’ and ‘other

modern explosives’ phrases effect only a partial

ban on those fireworks not excepted elsewhere in

the statute. These phrases are swallowed up by

subsection (2)(d) which refers to ‘fireworks

containing an explosive or inflammable

compound’ and ban the use, sale or possession of

all fireworks not permitted elsewhere in the

Statute. (Srajos, App. infra, A-12)(emphasis

added).

The statute cannot be saved by this tortured interpretation.

Reduced to its essence, this interpretation of the statute makes

the specific listing of devices pursuant to MCL 750.243a(2)(a)-

of subsection (d), a specific listing of prohibited chemical

colipounds, into one of a general prohibition. Further, the

prohibition against ambiguity and vagueness in a penal statute

is not a matter of legislative intent, but rather one of

constitutional right, Be// v. United States, 349 US. 81, 83

(1955), which the court below ignored.

Additionally, in finding that the vague phrases used in the

statute did not rise to the level of unconstitutional vagueness,

the opinion in Stajos violated universal standards of statutory

construction by presuming to determine a legislative intent of

total prohibition where that intent is nowhere expressed in the

statute, and by presuming that the unrestricted items allowed

pursuant to MCL 750.243a(3), are exceptions to a total

prohibition on fireworks arising out of the combined effect of

MCL 759.243a(2)\(c) and (d). In doing so, the court ignored the

express language of the seminal 1929 Michigan fireworks

statute, which was codified by MCL 750.1 1, ef seq., in 1931.

Section | of PA 14 of 1929 specifically stated that:

Nothing in this Act shall be construed to

prohibit . . . such fireworks as are not herein

prohibited . . . or the sale of any fireworks

provided the same were to be shipped directly

out of state.

Consequent!,, the Stajos court not only improperly

undertook to provide legislative intent, but also ignored the

express intent of the legislature at the time of codification. The

Michigan fireworks statute is unconstitutionally vague and can

only be saved by strictly construing its prohibition to those

specifically enumerated and by reference to the preemptive

federal classification scheme

eS)

s/ HUGH M. DAVIS. JR

Counsel of Record

s/ PATRICK Mi. EDWARDS {

iffornevs for]

719 Gnswold

Suite 1630

Detroit. Michigan 48

phon

}

Dated: Januar {

A *

APPENDIX TO PETITION FOR CERTIORARI

ORDER

STATE OF MICHIGAN

IN THE SUPREME COURT

IAM JAMES STAJOS d/b/a

» 7 -

\ i AGI

Int

because

EF FIREWORKS, |

plas . 7 Ila

titt we t

aint if-Appel tTit.

ervening Defendant-Appell

1 order of the Court, the motion for reconsideration

, m Pe eee Q 1002 nae — , c

rder of August 28, 1998 is considered. and it 1s

it does not appear that the order was entered

OPINION

STATE OF MICHIGAN

IN THE COURT OF APPEALS

(Decided and Filed January 24, 1997)

WILLIAM JAMES STAJOS d/b/a

AMERICAN EAGLE FIREWORKS, INC.,

Plaintiff-Appellant,

v. No. 178767

CITY OF LANSING,

Defendant-Appellee,

and

PEOPLE OF THE STATE OF MICHIGAN,

Intervening Defendant-Appellee.

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

TAYLOR, J.

Plaintiff appeals as of nght 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 and recognized categories of United States Department

of Transportation (USDOT) common fireworks that are neither

A-2

specifically restricted nor specifically allowed by MCL 750.243a:

MSA 28.440(1). It was his 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 MCL 750.243a: MSA 28.441(1)

was preempted by federal regulations or. as a criminal statute, was

void for vagueness as it related to the five specifically enumerate

categories of federal class C common firew orks.

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 the heart of the lawsuit was to obtain a ruling

regarding the legality of selling those fireworks that are not

specifically forbidden or specifically allowed by MCL 750.243a:

MSA 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 people of the State of Michigan to

intervene as a party defendant because plaintiff was asking the court

fo 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

plaintiffs preemption argument. The court later denied plaintiff's

motion for reconsideration

*Circuit judge, sitting on the Court of Appeals by assignment

J e 5 d

We review de novo a trial court's ruling on questions of law

in a declaratory judgment action. LASA V Lansing Bd of Education,

216 Mich App 79, 84; 549 NW2d 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 NW2d 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

NW 2d 804 (1985).

The relevant portion of MCL 750.243a: MSA 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, [']

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. (3)(b)].

(b) An unmanned balloon which requires fire

underneath to propel it and is not moored to the

ground while aloft.

roman candles, daygo bombs,’ bottle rockets,

Thus, the Legislature had made it a criminal misdemeanor for individuals

to light a firecracker in Michigan without a permit.

“Dr. Schneider testified that "daygo bombs" are now known as aerial

bombs

A-4

nT” tT

Whistling chasers. rockets on sticks or other fireworks of like

construction?

(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

[sic] 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 nor 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 contract [sic] 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.(2)(a)].

pounds of burning portion per sparkler.

(d) Flitter sparklers in Paper tubes not

exceeding 1/8 inch in diameter, cone fountains, and

cylinder fountains.

(€) Toy snakes not containing mercury, if

Violation of these Provisions ts a misdemeanor offense. MCL

750.243e: MSA 28 440(5)

A-5

| ;

packed in cardboard boxes with nor 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 4 misdemeanor to

sell’ 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 (110 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 makers, 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 MCL 750.243a; MSA 28.440(1) must be

strictly construed in his favor because it 1s a penal statute. While

4 .

It is not a misdemeanor to sell such items for direct shipment out

of state pursuant to federal regulations. Subsection (3)(g)

A-6

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, MCL 750.1 ey seq. MCL 750.2: MSA 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 n2; ss NW2d _ _ (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 wold preclude the use of

brasium nitrate. antimony sulphide, and potassium nitrate. Dr.

Schneider testified that potassium nitate is used to manufacture the

black powder found in most fireworks. and is used in all fuses.

Therefore, the second interpretation of subsection (2)(d) would

prohibit any firework that had a fuse. On cross-e€xamination, Dr.

Schneider testified that a phrase of the beginning of subsection (2)(d),

"Fireworks containing an explosive or inflammable compound,"

would necessarily encompass a// fireworks and would be sufficient to

ban every kind of firework> Dr. Schneider noted that this language

renders the remaining portion of the statute (which lists various anions

and metals) unnecessary. In a post-hearing affidavit filed in support

of plaintiff's motion for reconsideration. Dr. Schneider stated that the

statute appears to restrict some fireworks and allow those not

prohibited and that, if the Statute has any meaning at all, it can only be

read to restrict those fireworks containing compounds incorporating

both an anion and cation from the listed compounds.

The prosecution argues that plaintiff's proposed reading of the

Statute that a person may sell, possess, and use all fireworks except the

items mentioned in subsection (2)(c) is erroneous because it renders

subsection (3)(a)-(f) nugatory. The prosecution nevertheless concedes

A-7

that this case presents the unfortunate situation where a part of the

fireworks statute will become surplusage regardless of which party's

interpretation this Court ultimately adopts, i.e., the prosecution admits

that its suggested interpretation that the phrase "fireworks containing

an explosive or inflammable compound" forbids all fireworks such

that the remainder of subsection (2)(d) and all of (2)(c) become

surplusage. The prosecutor nevertheless contends that its

interpretation does far less violence to the statute than the

interpretation offered by plaintiff.

A fair review of he fireworks statute reveals a general

prohibition with certain limited exceptions. The permitted fireworks

do not end with words such as "or other fireworks of like

construction" as does the list of fireworks that may not be sold or used

without a permit. Further, subsection (2)(d) broadly forbids non-

identified fireworks containing any of eleven’ different

chemicals/metals or other modern explosives. Thus, the-wording of

the statute suggests that the Legislature intended the exclusions to be

broadly read and the exemptions to be narrowly read. Also, just

because the items prohibited in subsection (2)(c) such as firecrackers

would also be prohibited by subsection (2)(d) because they contain an

explosive or inflammable compound. does not necessarily make

subsection (2)(c) nugatory. Rather, we consider the language used to

have been the Legislature's way of providing a list of specific well-

known fireworks it wanted prohibited and then adding subsection

(2)(d) to catch any other non-excepted fireworks using very expansive

and overlapping language. Our interpretation of the statute merely

requires one to imply in the phrase "any and other" at the end of

subsection (2)(c) and before subsection (2)(d). Doing this produces

a result that is consistent with the overall language of the statute and

effects the object of the statute. MCL 750.2; MSA 28.192. Cf.

Dean v Dep't of Corrections, __ Mich __ (Docket No. 10195,

issues December 10, 1996) (to effectuate the legislative intent, the

phrase "a mandatory term of imprisonment" must be read to mean any

minimal term of imprisonment imposed by a judge under the statute).

Slip op at 13-14. Indeed, in the last two paragraphs of Dr. Schneider's

post-hearing affidavit he concludes that the only reasonably scientific

way to read the prohibited and excepted sections of the statute is to

consider the exceptions under subsection (3) as exceptions to the

prohibitions under subsection (2). While we are mindful that some

other assertions of Dr. Schneider made prior to this peroration appear

contradictory, we nevertheless agree with his conclusion.

A-8

We note that the history in the legislative analysis for 1978

PA 258 supports our interpretation. The Legislature had amended the

fireworks statute in 1968 to provide that fireworks listed in subsection

(2)(c) and (2)(d) were illegal "except as otherwise provided by law."

Because of a federal court ruling which cited this language to broaden

the types of fireworks allowed. the Legislature amended the statute in

1978 PA 258. That this was intended to restore the narrower

definition of allowed fireworks can be seen from the House

Legislative Analysis, HB 4987. June 14, 1978:

For many years, it was widely assumed that

Michigan Law prohibited the sale to the general

public and use of all firecrackers other than caps,

sparklers, and toy snakes. In fact. the state penal

code stats that all fireworks with more than one-

quarter of a grain of gunpowder are prohibited

“except as otherwise provided by law”, but the state's

hazardous substances act refers to federal fireworks

regulations as the applicable state standard -- federal

regulations which permitted some exploding

fireworks with up to two grains of gunpowder. In

1976, a federal judge ruled that because of the

reference to federal regulation in the hazardous

substance act, the sale and use of fireworks with up

to two grains of gunpowder are not subject to

criminal prosecution in Michigan.

This analysis went on to describe what the bill would

accomplish:

The bill would delete the phrase ["Jexcept as

otherwise provided by law" which was interpreted by

a federal judge to mean that federal regulations more

permissive than the state penal code provisions about

fireworks would govern prosecution involving the

sale and use of fireworks in Michigan, thus returning

the state to the standard in effect prior to the ruling

It would also add to the list of prohibited fireworks

those which contain fulminates.

The arguments for and against 1978 PA 258, as presented in

this analysis also indicated an awareness that the amendments would

A-9

ban the general sale and use of all fireworks not elsewhere excepted:

Michigan law is intended to prohibit the

general sale and use of all fireworks with over one-

quarter grain of gunpowder. . . . In combination with

House Bill 6316, the bill would return the state to the

restrictive standard which existed before a court

decision exposed an inadvertent loophole in the state

law.

Representatives of the pyrotechnical

amusement industry have contended that a return to

a ban on all Class C fireworks except sparklers,

snakes and caps is unwarranted because many of the

fireworks in this broad category are harmless.

Thus, the history precipitating the 1978 amendment, which

animated the Legislature, leads us to construe section (2) as

forbidding all fireworks not permitted by an exception>

Because 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, are not permitted by section (3) and they contain "an

explosive or inflammable compound,” they may not be lawfully sold

or used without a permit.

We also note with approval the following comment from the

prosecutor's brief on appeal:

"A reasonable person could nghtfully question the wisdom of a statute

which bans all but the most innocuous fireworks. Any discussion

regarding a statute's prudence, however is best left to the legislature

rather than the courts."*

5 : ; ,

For purposes of clarity, the Legislature may wish to consider

rewriting the statute

A-10

Plaintiff also argues that MCL 750.243a: MSA 28.440(1) is

preempted by various federal regulatoins. The trial court rejected this

claim, finding no conflict between the federal regulations and the

statute and no reason to suppose that Congress intended to preempt

the states from regulating fireworks sales.

In considering plaintiffs claim, we are cognizant that

Congress explicitly may define the extentto which its enactments

preempt state law. Schneidewind vy ANR Pipeline Co, 485 US 293.

302; 108 S Ct 1145, 1150: 99 L Ed 24 316, 325 (1988). In the

absence of an express Congressional comand, state law is preempted

if that law actually conflicts with federal law, or if federal law so

thoroughly occupies a legislative field as to make reasonable the

inference that Congress left no room for the statues to supplement it.

Cipollone v Liggett Group, Inc., 505 US 504, 516: 112 S$ Ct 2608,

2617; 120 L Ed 2d 407, 423 (1992). Properly promulgated federal

regulations may also preempt state statutes. /n re Freedland Estate.

38 Mich App 592, 596; 197 NW2d 143 (1972).

The trial court properly rejected plaintiff's preemption claim

here is no preemption because the federal regulations cited by

plaintiff only address the packaging and classification of fireworks for

interstate shipment and do not address the sale or use of fireworks

within a state. Cf. Colorado Pyrotechnic Ass'n v Meyer: 740 F Supp

792 (D Colo, 1990). Further, 18 USC 836 imposes criminal penalties

on a person who knowingly transports fireworks "in a manner or for

a use prohibited by the laws of such state specifically prohibiting or

regulating the use of fireworks." This provision also indicates that the

definition of fireworks contained in the laws of the respective states

shall be applied. It is thus apparent that the federal regulatoins

contemplate that states are not preempted from regulating the

intrastate sale and use of fireworks

{]

Plaintiff also complains that the fireworks statute is

unconstitutionally void for vagueness. As recently stated in People v

Lino, 447 Mich 567. 575-576; 527 NW2d 434 (1994)

In order to pass constitutional muster. a

penal statute must define the criminal offense "with

A-1]

sufficient definiteness that ordinary people can understand what

conduct 1s prohibited and in a manner that does not encourage

arbitrary and discriminatory enforcement. Vagueness challenges that

do not implicate First Amendment freedoms are examined in light of

the facts of each particular case. When making a vagueness

determination, a court must also take into consideratoion any judicial

constructions of the statute.

Thus, there are at least three ways a penal

statute may be found unconstitutionally vague: (1)

failure to provide fair notice of what conduct 1s

prohibited, (2) encouragement of arbitrary an

discriminatory enforcement, or (3) being overbroad

and impinging on irst Amendment freedoms

Plaintiff challenges as being void for vagueness subsections

(1)(b) and (c) which define "Class B fireworks" and "Class C

fireworks” respectively by listing various fireworks types and ending

their classification with the phrase "and other similar devices,"

subsection (2)(c) which lists a set of controlled fireworks by type an

ends with the phrase "or other fireworks of like construction," and

subsection (2)(d) which lists a set of controlled fireworks by type and

ends with the phrase "or other modern explosives."

When evaluating the vagueness of a statute, this Court will

“look to the entire text of the statute to determine whether the requisite

certainty exists." People v Hayes, 421 Mich 271, 284; 364 NW2d

635 (1984). As explained earlier in this opinion, the Legislature had

made the sale, possessionk or use, without a permit, of all fireworks

not expressly permitted by sectoin (3)° a misdemeanor. Therefore, it

is not necessary to determine esactly what "other similar devices,”

“other fireworks of like construction,” or "Other modern explosive"

mean to know what fireworks are prohibited for sale without a permit

Indeed, the "other fireworks of like construction” and "other modern

explosives" phrases effect only a partial ban on those fireworks not

excepted elsewhere in the statute. These phrases are swalowed up by

subsection (2)(d) which refers to "fireworks containing an explosive

or inflammable compound" and ban the use, sale or possession of all

fireworks not permitted elsewhere in the statute. Therefore, the

"Sections 243b, 243c and 243d are other exceptions that are not

expressly relevant to this appeal

A-12

alleged vagueness of the subsections (2)(c) and (d) language is a moot

question because the legality of fireworks sales. POSsession or use is

determined by the "(fireworks containing an explosive or inflammabe

compound" phrase in subsection (2)(d), regardless of an activity's

disposition under the remainder of subsections (2)(c) and (d). We

further note that subsection (| b) and (c)'s use of the phrases “other

similar devices" js only utilized in determining the proper storage of

fireworks, MC] 750.243d(b): MSA 28.440(4 b)

In sum, the permitted fireworks are readily discernible from

@ cursory reading of subsection (3). Thus, we find that MC]

750.243a: MSA 28 440(1) provides fair notice of prohibited conduct

and does not provide for arbitrary and discriminatory enforcement

\s stated by the Prosecution in its brief on appeal, "Although the

fireworks statute is not a model of clarity. jt Passes Constitutional

muster.’

Affirmed

STATE STATUTE

750.243a. Fireworks

Sec. 243a (1) Definitions. As used in this chapter:

(a) "Fireworks" means a device made from explosive or

flammable compositions used primarily for the purpose of producing

a visible display or audible effect, or both, by combustion,

deflagration, or detonation. Fireworks includes class B fireworks and

class C fireworks

(b) "Class B fireworks” means toy torpedoes, railway

torpedoes, firecrackers or salutes that do net qualify as class C

fireworks, exhibition display pieces, aeroplane flares, illuminating

projectiles, incendiary projectiles, incendiary grenades, smoke

projectiles or bombs containing expelling charges but without bursting

charges, flash powders in inner units not exceeding 2 ounces each,

flash sheets in interior packages, flash powder or spreader cartridges

containing not more than 72 grains of flash powder each, and other

similar devices

caps containing not more than .25 grains of explosive mixture, toy

propellant devices, cigarette loads, trick matches, trick noise makers,

smoke candles, smoke pots, smoke grenades, smoke signals, hand

signal devices, Very signal cartridges, sparklers, explosive auto

alarms, and other similar devices.

: (2) Sale, possession, transportation, use, prohibited.

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, 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.

(b) An unmanned balloon which requires fire underneath

to propel it and is not moored to the ground while aloft

A-14

daygo bombs, bottle rockets, whistling chasers. rockets on sticks, or

other fireworks of like construction.

(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, of lead

barium, antimony, arsenic. mercury, nitroglycerine, phosphorus, o: a

compound containing these or other modern explosives.

(3) Exceptions. A permit 1s 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) [oy 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 w hich are so constructed that the hand

cannot come in contract with the cap when in place for the explosion

and which are not designed to break apart or be separated so as to

orm a missile by the explosion

(Cc) Sparklers containing nor more than .0]25 pounds of

Ing portion per sparkler

(d) Flitter sparklers in paper tubes not exceeding 1/8 inch

diameter, cone foutains. and cylinder fountains

(e) loy snakes not containing mercury, if packed in

irdboard boxes with not more than 12 pieces per box for retail sale

nd if the manufacturer's name and the quantity contained in each box

ire printed on the box: and toy smoke devices

(f) Possession, transportation. sale, or use of signal flares

of a type approved by the director of the department of state police.

blank cartridges or blank cartridge pistols specifically for a show or

theater, for the training or, exhibiting of dogs, for signal purposes in

athletic sports, for use by military organizations, and all items

described in subsection (2) used by railroads for emergency signal

A-15

(2) lhe sale of fireworks, provided they are to be shipped

directly out of state pursuant to regulations of the United States

department of transportation covering the transportation of explosives

and other dangerous articles by motor, rail, and watet

STATE STATUTE

750.243b. Permit for use or Sale of fireworks: application:

Purpose of use; age limitation,

Sec. 243b (1) The council or commission of a City

or village or the township board of a toy nship, upon application in

writing, on forms provided by the director of the department Of state

police, may crant a permit for the use of fireworks otherwise

Prohibited by section 243a,' within their political Jurisdiction.

manufactured for outdoor pest control or agricultural Purposes, or for

public display by municipalities. fair associations. amusement parks.

or other organizations Or groups of individuals approved by the

township authority, if the applicable provisions Of this act are

compiled with. The permits shall be on forms Provided by the

director of the department of State police. After a permit has been

£ranted, sales. POSsession, or (ransportation of fireworks for the

Purposes described in the permit only may be made A permit granted

under this subsection Shall not be transferable, nor shall a permit be

issued to a person unde the age of 18 years

(2) lhe council oy commission of a city o1 village or the

township board of a township, upon application in writing, may grant

¢ permit, on forms provided by the director of the departmen, of state

police, to a resident Wholesale dealer or Jobber to have jin his

POSsession within the Political Jurisdiction, fireworks otherwise

prohibited by section 2434 for sale Only to holders of permits as

Provided in this section A permit granted under this subsection IS not

transferable, nor shall a permit be issued to a Person under the age of

18 years

(3) Before a permit fo, a pyrotechnic display is issued

the person. form, or Corporation making application therefor Shall

furnish proof of financial responsibility by a bond or insurance in an

amount deemed necessary by the local governing authority to Satisfy

claims for damages fo property or personal Injuries ansing out of an

act Or Omission on the part of the person. firm Or Corporation, or an

agent or employee thereof. in the amount. Character, and form the

local authority determines necessary for the protection of the public

(4) A permit shall not be issued under this act to 4

nonresident person, firm, or corporation for conduct of a pyrotechnic

display in this state until the person, firm, or corporation has

appointed in writing a resident member of the bar of this state or a

resident agent to be his legal representative upon whom all process in

an action or proceeding against him may be served

(5) The local governing authority shall rule on the

competency and qualifications of operators of py rotechnic displays,

as the operator has furnished in his application form, and on the time,

place, and safety aspects of the displays before granting permits

A-18

STATE STATUTE

750.243c. l'ransportation of fireworks intrastate; permit

ec. 243c. Transportation of fireworks intr: astate shall be

only with the permits provided for in this act and as follows

(a) In accordance with United States department of

‘Transportation regulation for transportation of explosives and other

dangerous articles by motor, rail. and water, including specifications

shipping containers

(b) In nonpassenger carrying vehicles, in charge of a

mpetent driver not less than 18 years of age, which are equipped

with a 15-pound carbon dioxide or a 10 pound dry chemical fire

xtinguisher; and in or near which sm king shall be prohibited while

ading, unloading, or transporting fireworks

SE TTTNSTéT€.: “i

FEDERAL STATUTE

49 U.S.C. §5125 Preemption

(a) General.---Except as provided in subsections (b), (c) and (e)

of this section, and unless authorized by another law of the United

States, a requirement of a state, political subdivision of a state or

Indian tribe is preempted if---

(1) complying with a requirement of the state, political

subdivision or tribe and a requirement of this chapter or a

regulation prescribed under this chapter is not possible; or

(2) the requirement of the state, political subdivision or

tribe, as applied or enforced, is an obstacle to accomplishing

and carrying out this chapter or a regulation prescribed under

this chapter.

(b) Substantive differences.---(1) Except as provided in

subsection (c) of this section and unless authorized by another law of

the United States, a law, regulation, order or other requirement of a

state, political subdivision of a state or Indian tribe about any of the

following subjects, that is not substantively the same as a provision of

this chapter or a regulation prescribed under this chapter, is

preempted:

(A) the designation, description and classification of

hazardous material.

(B) the packing, repacking, handling, labeling, marking

and placarding of hazardous material.

documents related to hazardous material and requirements

related to the number, contents and placement of those

documents.

(D) the wntten notification, recording and reporting of

the unintentional release in transportation of hazardous

material.

(E) the design, manufacturing, fabrication, marking,

maintenance, reconditioning, repairing or testing of a

packaging or a container represented, marked, certified or

sold as qualified for use in transporting hazardous material.

(2) Ifthe Secretary of Transportation prescribes or has prescribed

A-20

OS'S

under section 5103(b), 5104, 5110 Or 5112 of this title oy prior

comparable provision of law a regulation or standard related to a

subject referred to In Paragraph (1) of this Subsection, a State, politica]

Subdivision of a state or Indian tribe may prescribe, issue. Maintain

and enforce only a law, regulation, standard or order about the Subject

that is substantively the same as a Provision of this chapter or a

regulation Prescribed or order issued under this chapter. 7 he

Secretary shall decide on and Publish in the Federal Register the

effective date of section 5103(b) of this title for any regulation or

standard about any of those subjects that the Secretary Prescribes afte;

November 16. 1990. However. the effective date may not earlier than

20 days after the Secretary prescribes the regulation ro Standard nor

later than the last day of the 2-year period beginning on the date the

»€cTelary prescribes the regulation or Standard

(3) If @ state. Political subdivision of a state or Indian tribe

iMpoOses a fine or penalty the Secretary decides 1S appropriate for a

violation related to a subject referred to in Paragraph (12) of thic

subsection, an additional fine or penalty may not be imposed by any

Other authority

¢) Compliance with section 5] 12(b) regulations. ---( |) Except as

Provided in Paragraph (2) of this Subsection, after the last day of the

2-year period beginning on the date a regulation is Prescribed unde;

section 5] 12(b) of this title, a State or Indian tribe may establish.

maintain or enforce a highway routing designation over which

hazardous material may or may not be transported by motor vehicles.

Or a limitation or requirement related to highway routing, only if the

designation. limitation or requirement complies with section 5112(b)

(2A) A highway routing designation. limitation or requirement

established before the date a regulation jis Prescribed under section

5112(b) of this title does not have to comply with section

5112(b)\(1 (B), (C) and (F)

(B) This Subsection and section 5112 of this title do not require

a state or Indian tribe to comply with section 5112(b)(1)(1) if the

highway routing designation, limitation or requirement was

established before November 16. 199 |

limitation or requirement to continue in effect until a dispute related

(o the designation. limitation or requirement is resolyed under section

5112(d) of this title.

A-2]

(d) Decisions on preemption.---(a) A person (including a state,

political subdivision of a state or Indian tribe) directly affected by a

requirement of a state, political subdivision or tribe may apply to the

Secretary, as provided by regulations prescribed by the Secretary, for

a decision on whether the requirement is preempted by subsection (a),

(b)(1), or (c) of this section. The Secretary shall issue a decision on

an application for a determination within 180 days after the date of

the publication of the notice of having received such application, or

the Secretary shall publish a statement in the Federal Register of the

reason why the Secretary’s decision on the application is delayed,

along with an estimate of the additional time necessary before the

decision is made. After notice is published, an applicant may not seek

judicial relief on the same or substantially the same issue until the

Secretary takes final action on the application or until 180 days after

the application ts filed, whichever occurs first.

(2) After consulting with states, political subdivisions of states,

and Indian tribes, the Secretary shall prescribe regulations for carrying

out paragraph (1) of this subsection.

(3) Subsection (a) of this section does not prevent a state,

political subdivision of a state or Indian tribe, or another person

directly affected by a requirement, from seeking a decision on

preemption from a court of competent jurisdiction instead of applying

to the Secretary under paragraph (1) of this subsection

(ec) Waiver of preemption.---A state, political subdivision of a

state or Indian tribe may apply to the Secretary for a waiver of

preemption of a requirement by the state, political subdivision or tribe

acknowledges is preempted by subsection (a), (b)(1) or (c) of this

section. Under a procedure the Secretary prescribes by regulation, the

Secretary may waive preemption on deciding the requirement---

(1) Provides the public at least as much protection as do

requirements of this chapter and regulations prescribed under

this chapter; and

(2) is not an unreasonable burden on commerce.

(f) Judicial review.---A party to a proceeding under subsection

(d) or (3) of this section may bring a civil action in an appropriate

district court of the United States for judicial review of the decision

of the Secretary not later than 60 days after the decision becomes

final.

A-22

(2) Fees ---(1) A State

Political subdivi:

ibe May impose a {

ee related to transporting

> fair and used for

lazardous material.

10N Of a state or Indian

hazardous material

4 purpose related to

enforcement and

if the fee Is

and maintaining

only

transporting

planning, developing

onSse

Including

a Capability for emergency res

(2) A state or political subdivision there for

levies a fee in connection with the trans

» Shall, upon the Secretary

Indian tribe that

portation of

hazardous

Ss request, report to the

Secretan

(A) the basic on

vol

(B) the purposes

W hich the fee

i levied upon

ved in such (ransporta

pel SON

tion

lor which the rey nues from the fe

((

) the annual (otal amount of the

me revenues Collected

: oe

m the lee: ; ad

FEDERAL REGULATIONS

Subpart C -- Definitions, Classification and Packaging for Class

49 CFR Section 173.50 Class 1---definitions.

(1) Explosive. For the purpose of this subchapter, an explosive

means any substance or article. including a device, which is designed

to function by explosion (1.e., an extremely rapid release of gas and

heat) or which, by chemical reaction within itself, is able to function

in a similar manner even if not designed to function by explosion,

unless the substance or article is otherwise classed under the provision

of this subchapter.

(b) Explosives in Class 1 are divided into six divisions as

follows:

(1) Division 1.1 consists of explosives that have a mass explosion

hazard. A mass explosion is one which affects almost the entire load

instantaneously.

(2) Division 1.2 consists of explosives that have a projection

hazard but not a mass explosion hazard.

(3) Division 1.3 consists of explosives that have a fire hazard and

either a minor blast hazard or a minor projection hazard or both, but

not a mass explosion hazard.

(4) Division 1.4 consists of explosives that present a minor

explosion hazard. The explosive effects are largely confined to the

package and no projection of fragments of appreciable size or range

is to be expected. An external fire must not cause virtually

instantaneous explosion of almost the entire contents of the package.

(5) Division 1.5 [footnote: The probability of transition from

burning to detonation is greater when large quantities are transported

in a vessel.} consists of very insensitive explosives. This division is

comprised of substances which have a mss explosion hazard but are

so insensitive that there 1s very little probability of initiation or of

transition from burning to detonation under normal condition of

transport.

(6) Division 1.6 [footnote: The risk from articles of Division 1.6

is lirrited to the explosion of a single article.] consists of extremely

insensitive articles which do no: have a mass explosive hazard. This

division is comprised of articles which contain only extremely

insensitive detonating substances and which demonstrate a negligible

probability of accidental initiation or propagation.

A-24

Section 173.51 Authorization to offer and transport explosives.

(a) Unless otherwise provided in this subpart, no person may

offer for transportation or transport an explosive, unless it has been

tested and classed and approved by the Associate Administrator for

Hazardous Materials Safety (Section 173.56).

(b) Reports of explosives approved by the Department of

Defense or the Department of Energy must be filed with, and receive

acknowledgment in writing by, the Associate Administrator for

Hazardous Materials Safety prior to such explosives being offered for

transportation.

Section 173.52 Classification codes and compatibility groups of

explosives.

(a) The classification code for an explosive, which is assigned by

the Associate Administrator for Hazardous Materials Safety in

accordance with the subpart, consists of the division number followed

by the compatibility group letter. Compatibility group letters are used

to specify the controls for the transportation, and storage related

thereto, of explosives and to prevent an increase in hazard that might

result if certain types-of explosives were stored or transported

together. Transportation compatibility requirements for carriers are

prescribed in Sections 174.81, 175.78. 176.83 and 177.848 of this

subchapter for transportation by rail, air, vessel and public highway,

respectively, and storage incidental thereto.

(b) Compatibility groups and classification codes for the various

types of explosives are set forth in the following tables. Table | sets

forth compatibility groups and classification codes for substances and

articles described in the first column of

Table 1. Table 2 shows the number of classification codes that are

possible within each explosive division. Altogether, there are 35

possible classification codes for explosives.

Section 173.53 Provisions for using old classifications of

explosives.

Where the classification system in effect prior to January 1,

199]. is referenced in state or local jaws, ordinances or regulations

not pertaining to the transportation of hazardous materials, the

following table may be used to compare old and new hazard class

names:

Current Classification Class name prior to Jan.1,

1991

Division 1.1 Class A explosives

Division 1.2 Class A or Class B

explosives

Division 1.3 Class B explosive

Division 1.4 Class C explosives

Division 1.5 Blasting agents

Division 1.6 No applicable hazard class

Section 173.54 Forbidden explosives.

Unless otherwise provided in this subchapter, the following

explosives shall not be offered for transportation or transported:

(a) An explosive that has not been approved in accordance with

Section 173.56 of this subpart.

(b) An explosive mixture or device containing a chlorate and also

containing

(1) An ammonium salt, including a substituted ammonium or

quaternary ammonium salt; or

(2) An acidic substance, including a salt of a weak base and a

strong acid

(d) Propellants that are unstable, condemned or deteriorated.

(e) Nitroglycerin, diethylene glycol dinitrate or any other liquid

explosives not specifically authorized by this subchapter.

(f) A loaded firearm (except as provided in 14 CFR 108.11).

() Fireworks that combine an explosive and a detonator.

(h) Fireworks containing yellow or white phosphorus.

(i) A toy torpedo, the maximum outside dimension of which

exceeds 23 mm. (0.906 inch), or a toy torpedo containing a mixture

of potassium chlorate, black antimony (antimony sulfide), and

sulphur, if the weight of the explosive material in the device exceeds

0.26 g (0.01 ounce).

(j) Explosives specifically forbidden in the section 172.101

Table of this subchapter.

A-26

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.