Phantom of Brevard, Inc. v. Brevard County

966 So. 2d 423, 2007 Fla. App. LEXIS 13431, 2007 WL 2456201
CourtDistrict Court of Appeal of Florida
DecidedAugust 31, 2007
Docket5D06-3408
StatusPublished
Cited by2 cases

This text of 966 So. 2d 423 (Phantom of Brevard, Inc. v. Brevard County) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Phantom of Brevard, Inc. v. Brevard County, 966 So. 2d 423, 2007 Fla. App. LEXIS 13431, 2007 WL 2456201 (Fla. Ct. App. 2007).

Opinion

966 So.2d 423 (2007)

PHANTOM OF BREVARD, INC., Appellant,
v.
BREVARD COUNTY, Appellee.

No. 5D06-3408.

District Court of Appeal of Florida, Fifth District.

August 31, 2007.
Rehearing Denied October 18, 2007.

*424 Mark D. Shuman, of GrayRobinson, P.A., Melbourne, for Appellant.

Scott L. Knox, of Office of the County Attorney, Viera, for Appellee.

*425 GRAHAM, R., Associate Judge.

The appellant, Phantom of Brevard, Inc., appeals from a final summary judgment entered in favor of Brevard County in this declaratory judgment action. We affirm in part, reverse in part, and remand.

In the court below, Phantom sought a judgment declaring Brevard County Ordinance 05-60, as amended by Brevard County Ordinance 06-18, to be unconstitutional. Among other things, Ordinance 05-60 regulates the supply, sale, and use of fireworks and sparklers; imposes record-keeping requirements on retailers; and establishes application and permitting processes to regulate any public display of fireworks within the county. On appeal, Phantom contends, as it did below, that fireworks regulation has been preempted to the state. Chapter 791, Florida Statutes, governs the manufacture, distribution, storage, sale and use of fireworks. Chapter 791 also provides definitions to distinguish between lawful "sparklers" and unlawful "fireworks," authorizes the state fire marshal to approve specific sparklers for use, and sets out exemptions for specific groups of fireworks users. Moreover, chapter 791 contemplates that local governments will issue fireworks-related permits and enforce state laws and rules:

This chapter shall be applied uniformly throughout the state. Enforcement of this chapter shall remain with local law enforcement departments and officials charged with the enforcement of the laws of the state.

§ 791.001, Fla. Stat. (2006).

The outdoor display of fireworks in this state shall be governed by the National Fire Protection Association (NFPA) 1123, Code for Fireworks Display, 1995 Edition, approved by the American National Standards Institute. Any state, county, or municipal law, rule, or ordinance may provide for more stringent regulations for the outdoor display of fireworks, but in no event may any such law, rule, or ordinance provide for less stringent regulations for the outdoor display of fireworks.

§ 791.012, Fla. Stat. (2006).

Except as hereinafter provided it is unlawful for any person, firm, copartnership, or corporation to offer for sale, expose for sale, sell at retail, or use or explode any fireworks; provided that the board of county commissioners shall have power to adopt reasonable rules and regulations for the granting of permits for supervised public display of fireworks by fair associations, amusement parks, and other organizations or groups of individuals when such public display is to take place outside of any municipality; provided, further, that the governing body of any municipality shall have power to adopt reasonable rules and regulations for the granting of permits for supervised public display of fireworks within the boundaries of any municipality.

§ 791.02, Fla. Stat. (2006).

The board of county commissioners shall require a bond deemed adequate by the board of county commissioners from the licensee in a sum not less than $500 conditioned for the payment of all damages which may be caused either to a person or to property by reason of the licensee's display, and arising from any acts of the licensee, his or her agents, employees or subcontractors.

§ 791.03, Fla. Stat. (2006).

Each sheriff, or his or her appointee, or any other police officer, shall seize, take, remove or cause to be removed at the expense of the owner, all stocks of fireworks or combustibles offered or exposed *426 for sale, stored, or held in violation of this chapter.

§ 791.05, Fla. Stat. (2006).

In Phantom of Clearwater, Inc. v. Pinellas County, 894 So.2d 1011 (Fla. 2d DCA 2005), the second district court addressed whether chapter 791 preempted a Pinellas County fireworks ordinance that is similar to the Brevard County ordinance that Phantom challenges in this case. After comprehensively examining the Pinellas ordinance and chapter 791, the court held that chapter 791 does not expressly or impliedly preempt the field of fireworks regulation. 894 So.2d at 1018-20. The court found "no pervasive scheme of regulation and no strong public policy reason that would prevent a local government from enacting ordinances in this area so long as they do not directly conflict with the provisions of chapter 791." Id. at 1020. The court determined that the sections of the Pinellas ordinance regarding storage and sale of sparklers, creation and maintenance of business records, and the permitting process required of sellers (and wholesalers in particular) do not directly conflict with the corresponding provisions of chapter 791. Id. at 1022-23. The court identified one penalty in the Pinellas ordinance that conflicted with state law, held that it was severable from the ordinance, and reversed and remanded on this limited basis. Id. at 1021.

Brevard County Ordinance 05-60, as amended by Brevard County Ordinance 06-18, contains language that is substantially identical to the language of the Pinellas County Ordinance.[1] The Brevard ordinance, however, is different in several material respects. Section 6 of Ordinance 05-60 requires "[e]very vendor of fireworks or sparklers" to provide a receipt to each customer. Section 7 states that "[a]ny device permitted by this ordinance shall have printed in English on the label or container thereof the total weight of combustible substance, the name of the chemical composition and a brief statement describing its action when ignited." Section 8 purports to impose strict liability "upon vendors, distributors and manufacturers" of fireworks and sparklers, which "shall be deemed ultra-hazardous and dangerous products." Section 12 sets forth application requirements and the permit process that a sponsor of a public display of fireworks must follow. Section 13 prohibits the use, storage or explosion of fireworks unless:

(a) The person or entity first obtains an appropriate county permit for the public display of fireworks or pyrotechnics in accordance with this ordinance; or
(b) The use is by a railroad or other transportation agency for illumination or signal purposes or the use is associated with quarrying, blasting, or another industrial purpose in accordance with F.S. Section 791.04; or
(3) [sic] The use [is] in conjunction with a bona fide agricultural use, as provided in F.S. Section 791.07 and the applicable provision of the Florida Administrative Code.

Finally, Ordinance 06-18 defines the "ceremonial" use of fireworks, for which a statutory exemption exists. "Ceremonial" is not defined in chapter 791.

On appeal, Phantom maintains that Brevard County Ordinance 05-60, as amended by Brevard County Ordinance 06-18, violates *427 Article VIII, Section 1(g) of the Florida Constitution, which provides that "[t]he governing body of a county operating under a charter may enact county ordinances not inconsistent with general law." Although the ordinance contains a severability clause, Phantom seeks a judicial determination that the entire ordinance is unconstitutional.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Phantom of Brevard, Inc. v. Brevard County
3 So. 3d 309 (Supreme Court of Florida, 2008)
Enterprise Leasing Co. v. Jones
789 So. 2d 964 (Supreme Court of Florida, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
966 So. 2d 423, 2007 Fla. App. LEXIS 13431, 2007 WL 2456201, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phantom-of-brevard-inc-v-brevard-county-fladistctapp-2007.