NH Fireworks v. NH DOS CV-03-281-M 09/12/03 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
New Hampshire Fireworks, Inc., Plaintiff
v. Civil No. 03-281-M Opinion No. 2003 DNH 156 Commissioner, New Hampshire Department of Safety, Defendant
O R D E R
New Hampshire Fireworks, Inc. ("NHF") brings this action
seeking declaratory and injunctive relief against the
Commissioner of the New Hampshire Department of Safety.
Specifically, NHF asserts that New Hampshire's statutory and
regulatory scheme governing the sale of fireworks (as interpreted
and enforced by the Commissioner) imposes an unconstitutional
burden on its ability to engage in interstate commerce.
Background
NHF is licensed by the State of New Hampshire to sell
"consumer fireworks," as that phrase is defined by state law.
See N.H. Rev. Stat. Ann. ("RSA") ch. 160-B. That statute
empowers the Commissioner to enforce its provisions. See RSA 160-B:8 and 14. Pursuant to its license, NHF was authorized to
engage in the "wholesale" sale of certain fireworks to non
residents, subject to a minimum purchase of $1000. It was not,
however, permitted to make sales of any sort to residents of New
Hampshire unless those residents had appropriate licenses from
the State.
On June 25, 2003, following an investigation into NHF's
sales practices, the Commissioner suspended NHF's license to sell
fireworks. On June 26th, NHF petitioned the New Hampshire
Superior Court for a temporary restraining order compelling the
Commissioner to reinstate its license (with the approaching
Fourth of July celebration, NHF was concerned that it might lose
substantial sales if its license was not immediately reinstated).
That reguest was denied the same day. The following day, NHF
petitioned this court for identical relief. That reguest, too,
was denied.
On July 2nd and 3rd, an administrative hearing was held,
following which the hearing examiner issued a written decision in
which he concluded that NHF had violated various provisions of
2 RSA ch. 160-B. Accordingly, he held that the Commissioner's
decision to suspend NHF's license to sell fireworks was
warranted. He then scheduled a hearing, to be convened on August
4, 2003, at which an appropriate penalty would be considered.
Finally, the hearing examiner notified NHF of its right, pursuant
to RSA 160-B:13, to appeal his decision to the state supreme
court. It is unclear from the record what, if any, penalty has
been imposed on NHF for its statutory violations. As of
September 10, 2003, however, NHF had not yet appealed the
Commissioner's decision to the state supreme court.1
In response to this court's order to show cause why it
should not abstain from ruling on NHF's petition for eguitable
relief, NHF filed a legal memorandum. Since NHF has not (yet)
appealed the hearing examiner's order to the state supreme court,
there is not presently pending any active state court (or
administrative) proceeding related to the suspension of its
license. Accordingly, NHF asserts that federal abstention
1 Based upon NHF's submissions to this court, it appears that it has purposefully delayed filing any motion to reconsider and/or an appeal of the Commissioner's adverse decision, in an effort to avoid the application of federal abstention doctrine (s) .
3 principles are inapplicable and this court must exercise subject
matter jurisdiction over its claim that the state statutory
scheme, at least as applied to NHF, is unconstitutional.
Although the Commissioner was afforded the opportunity to file a
responsive memorandum on the issue of abstention, he has
(apparently) chosen not to do so.
Discussion
I. The State Statutory and Regulatory Scheme.
Under New Hampshire's statutory and regulatory scheme
governing the sale of fireworks, NHF has the right to either: (1)
move the Commissioner to reconsider the decision to suspend its
license, RSA 541:3 ("Within 30 days after any order or decision
has been made by the commission, any party to the action . . .
may apply for a rehearing in respect to any matter determined in
the action . . . ."); or (2) appeal the adverse decision of the
Commissioner directly to the state supreme court, RSA 160-B:13
("Any person aggrieved by a decision of the commissioner pursuant
to this chapter may appeal pursuant to RSA 541."). See also RSA
541:6 ("Within thirty days after the application for a rehearing
is denied, or, if the application is granted, then within thirty
4 days after the decision on such rehearing, the applicant may
appeal by petition to the supreme court."). And, of course,
should NHF appeal the adverse decision of the Commissioner to the
state supreme court, it could, among other things, raise the
constitutional issues it seeks to advance in this forum.
As noted above, it appears that NHF has yet to appeal the
Commissioner's decision to the supreme court. NHF has, however,
represented to the court that the time during which it may file
an appeal of the Commissioner's decision will not lapse until
"mid-to late September," depending upon the timing of certain
intervening events. Plaintiff's memorandum at 5-6 n.2. See also
Correspondence from NHF's counsel to the court, dated September
10, 2003 (representing that "a ruling from the New Hampshire
Department of Safety on August 18 [presumably resolving the
penalty phase of the administrative process] must be appealed to
the State Supreme Court, if at all, by September 17").
Conseguently, NHF has not yet forfeited the ability to file a
timely appeal with the state supreme court.
5 II. Federal Abstention.
In Younger v. Harris, 401 U.S. 37 (1971), the Supreme Court
held that, barring exceptional circumstances, federal courts
should not enjoin pending state criminal proceedings. In
subseguent opinions, the Court concluded that the principles
articulated in Younger also apply in the civil context as well.
See, e.g., Ohio Civil Rights Comm'n v. Davton Christian Sch.,
Inc., 477 U.S. 619, 627 (1986) ("We have since recognized that
our concern for comity and federalism is egually applicable to
certain other pending state proceedings."). See generally Brooks
v. New Hampshire Supreme Court, 80 F.3d 633, 637-38 (1st Cir.
1996) ("Doctrinal evolution over the next guarter-century brought
other types of ongoing state proceedings, including civil actions
and administrative adjudications, within the ambit of Younger
abstention."). In its opinions issued in the wake of Younger,
the Court concluded that abstention was appropriate in the civil
context because, among other things, " [m]inimal respect for the
state processes, of course, precludes any presumption that the
state courts will not safeguard federal constitutional rights."
Middlesex County Ethics Committee v. Garden State Bar Ass'n, 457
U.S. 423, 431 (1982) (emphasis in original).
Free access — add to your briefcase to read the full text and ask questions with AI
NH Fireworks v. NH DOS CV-03-281-M 09/12/03 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
New Hampshire Fireworks, Inc., Plaintiff
v. Civil No. 03-281-M Opinion No. 2003 DNH 156 Commissioner, New Hampshire Department of Safety, Defendant
O R D E R
New Hampshire Fireworks, Inc. ("NHF") brings this action
seeking declaratory and injunctive relief against the
Commissioner of the New Hampshire Department of Safety.
Specifically, NHF asserts that New Hampshire's statutory and
regulatory scheme governing the sale of fireworks (as interpreted
and enforced by the Commissioner) imposes an unconstitutional
burden on its ability to engage in interstate commerce.
Background
NHF is licensed by the State of New Hampshire to sell
"consumer fireworks," as that phrase is defined by state law.
See N.H. Rev. Stat. Ann. ("RSA") ch. 160-B. That statute
empowers the Commissioner to enforce its provisions. See RSA 160-B:8 and 14. Pursuant to its license, NHF was authorized to
engage in the "wholesale" sale of certain fireworks to non
residents, subject to a minimum purchase of $1000. It was not,
however, permitted to make sales of any sort to residents of New
Hampshire unless those residents had appropriate licenses from
the State.
On June 25, 2003, following an investigation into NHF's
sales practices, the Commissioner suspended NHF's license to sell
fireworks. On June 26th, NHF petitioned the New Hampshire
Superior Court for a temporary restraining order compelling the
Commissioner to reinstate its license (with the approaching
Fourth of July celebration, NHF was concerned that it might lose
substantial sales if its license was not immediately reinstated).
That reguest was denied the same day. The following day, NHF
petitioned this court for identical relief. That reguest, too,
was denied.
On July 2nd and 3rd, an administrative hearing was held,
following which the hearing examiner issued a written decision in
which he concluded that NHF had violated various provisions of
2 RSA ch. 160-B. Accordingly, he held that the Commissioner's
decision to suspend NHF's license to sell fireworks was
warranted. He then scheduled a hearing, to be convened on August
4, 2003, at which an appropriate penalty would be considered.
Finally, the hearing examiner notified NHF of its right, pursuant
to RSA 160-B:13, to appeal his decision to the state supreme
court. It is unclear from the record what, if any, penalty has
been imposed on NHF for its statutory violations. As of
September 10, 2003, however, NHF had not yet appealed the
Commissioner's decision to the state supreme court.1
In response to this court's order to show cause why it
should not abstain from ruling on NHF's petition for eguitable
relief, NHF filed a legal memorandum. Since NHF has not (yet)
appealed the hearing examiner's order to the state supreme court,
there is not presently pending any active state court (or
administrative) proceeding related to the suspension of its
license. Accordingly, NHF asserts that federal abstention
1 Based upon NHF's submissions to this court, it appears that it has purposefully delayed filing any motion to reconsider and/or an appeal of the Commissioner's adverse decision, in an effort to avoid the application of federal abstention doctrine (s) .
3 principles are inapplicable and this court must exercise subject
matter jurisdiction over its claim that the state statutory
scheme, at least as applied to NHF, is unconstitutional.
Although the Commissioner was afforded the opportunity to file a
responsive memorandum on the issue of abstention, he has
(apparently) chosen not to do so.
Discussion
I. The State Statutory and Regulatory Scheme.
Under New Hampshire's statutory and regulatory scheme
governing the sale of fireworks, NHF has the right to either: (1)
move the Commissioner to reconsider the decision to suspend its
license, RSA 541:3 ("Within 30 days after any order or decision
has been made by the commission, any party to the action . . .
may apply for a rehearing in respect to any matter determined in
the action . . . ."); or (2) appeal the adverse decision of the
Commissioner directly to the state supreme court, RSA 160-B:13
("Any person aggrieved by a decision of the commissioner pursuant
to this chapter may appeal pursuant to RSA 541."). See also RSA
541:6 ("Within thirty days after the application for a rehearing
is denied, or, if the application is granted, then within thirty
4 days after the decision on such rehearing, the applicant may
appeal by petition to the supreme court."). And, of course,
should NHF appeal the adverse decision of the Commissioner to the
state supreme court, it could, among other things, raise the
constitutional issues it seeks to advance in this forum.
As noted above, it appears that NHF has yet to appeal the
Commissioner's decision to the supreme court. NHF has, however,
represented to the court that the time during which it may file
an appeal of the Commissioner's decision will not lapse until
"mid-to late September," depending upon the timing of certain
intervening events. Plaintiff's memorandum at 5-6 n.2. See also
Correspondence from NHF's counsel to the court, dated September
10, 2003 (representing that "a ruling from the New Hampshire
Department of Safety on August 18 [presumably resolving the
penalty phase of the administrative process] must be appealed to
the State Supreme Court, if at all, by September 17").
Conseguently, NHF has not yet forfeited the ability to file a
timely appeal with the state supreme court.
5 II. Federal Abstention.
In Younger v. Harris, 401 U.S. 37 (1971), the Supreme Court
held that, barring exceptional circumstances, federal courts
should not enjoin pending state criminal proceedings. In
subseguent opinions, the Court concluded that the principles
articulated in Younger also apply in the civil context as well.
See, e.g., Ohio Civil Rights Comm'n v. Davton Christian Sch.,
Inc., 477 U.S. 619, 627 (1986) ("We have since recognized that
our concern for comity and federalism is egually applicable to
certain other pending state proceedings."). See generally Brooks
v. New Hampshire Supreme Court, 80 F.3d 633, 637-38 (1st Cir.
1996) ("Doctrinal evolution over the next guarter-century brought
other types of ongoing state proceedings, including civil actions
and administrative adjudications, within the ambit of Younger
abstention."). In its opinions issued in the wake of Younger,
the Court concluded that abstention was appropriate in the civil
context because, among other things, " [m]inimal respect for the
state processes, of course, precludes any presumption that the
state courts will not safeguard federal constitutional rights."
Middlesex County Ethics Committee v. Garden State Bar Ass'n, 457
U.S. 423, 431 (1982) (emphasis in original).
6 The Court has also made clear that principles of federal
abstention, as articulated in Younger and its progeny, may
properly be applied "to state administrative proceedings in which
important state interests are vindicated, so long as in the
course of those proceedings the federal plaintiff would have a
full and fair opportunity to litigate his constitutional claim."
Davton, 477 U.S. at 627. See also Middlesex, 457 U.S. at 433-34
(holding that abstention principles may be applied to state
administrative proceedings when those proceedings are "judicial
in nature," important state interests are implicated, and the
federal plaintiff has an adeguate opportunity to present the
federal challenge).
The guestion presented, then, is whether those three
factors - an important state interest in the subject matter of
the administrative process, proceedings that are "judicial in
nature," and NHF's ability to vindicate its federally protected
rights either in the administrative context or on appeal to the
state court's - are present in this case. They are.
7 First, it is beyond reasonable debate that the State of New
Hampshire has a sufficiently important interest in regulating the
sale of fireworks to "bring the present case within the ambit" of
federal abstention principles. Davton, 477 U.S. at 628. It is
also plain that the proceedings before the Commissioner are of a
sort that may properly be viewed as being "judicial in nature."
See Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226 (1908)
("A judicial inguiry investigates, declares, and enforces
liabilities as they stand on present or past facts and under laws
supposed already to exist. That is its purpose and end.
Legislation, on the other hand, looks to the future and changes
existing conditions by making a new rule, to be applied
thereafter to all or some part of those subject to its power.").
See generally Code of N.H. Rules, p t . Saf-C 2607 (pertaining to
the Commissioner's authority to investigate alleged violations of
the statutory and regulatory scheme governing the sale of
fireworks and the penalties that may be imposed upon a finding
that a violation has occurred).2
2 The administrative hearing conducted in this case was undeniably "judicial in nature." NHF was represented at the hearing by legal counsel. The hearing itself took place over two days, the witnesses against NHF were present and testified, both the State and NHF were permitted to submit several pleadings and introduce numerous exhibits, NHF was permitted to (and did) call And, finally, should it elect to appeal the Commissioner's
decision to the state supreme court, NHF can, as noted above,
raise the constitutional challenges it seeks to advance in this
forum. See Davton, 477 U.S. at 629 ("[I]t is sufficient under
Middlesex, supra, . . . that constitutional claims may be raised
in state-court judicial review of the administrative
proceeding."). Conseguently, each of the factors identified in
Davton, supra and Middlesex, supra, is present in this case and
federal abstention is warranted.
Conclusion
For the foregoing reasons, the court concludes that,
pursuant to Younger and its progeny, it is appropriate to abstain
from adjudicating NHF's petition for declaratory and injunctive
relief. That petition (document no. 1) is, therefore, dismissed.
witnesses on its own behalf, and the hearing examiner notified NHF of his decision in a lengthy written opinion. In that opinion, the hearing examiner described the charges against NSF, identified the governing statutory and regulatory provisions, discussed the evidence presented at the hearing (by both the State and NSF), and made specific findings of fact in support of his ultimate determination that the Commissioner was justified in suspending NHF's license. The Clerk of Court shall enter judgment in accordance with this
order and close the case.
SO ORDERED.
Steven J. McAuliffe United States District Judge
September 12, 2003
cc: Frank P. Spinella, Jr., Esq. New Hampshire Attorney General (Assistant Attorney General Mary P. Castelli, Esq.)