State v. Windy City Fireworks, Inc.

600 N.E.2d 555, 1992 Ind. App. LEXIS 1461, 1992 WL 236369

• Court: Indiana Court of Appeals
• Decided: September 28, 1992
• Docket: 25A03-9205-CR-162
• Status: Published

Opinions

STATON, Judge.

The State of Indiana brings an appeal pursuant to IND.CODE 85-88-4-2(4) following the acquittal of Windy City Fireworks, Inc. upon seven of eight counts for Unlawful Retail Sale of Fireworks.¹ The State presents two (restated) issues for our review:

I. Whether a resident fireworks wholesaler may, pursuant to IND.CODE 22-11-14-4, lawfully sell at retail fireworks not approved for retail sale in Indiana upon the purchaser's execution of a statement that the fireworks will be shipped out of state.

II. Whether Final Instruction 9 was erroneous.

We conclude that I.C. 22-11-14-4 does not permit retail sales to members of the general public of fireworks other than those listed in I.C. 22-11-14-8.

Windy City Fireworks, Inc. ("Windy City") is a licensed wholesale fireworks dealer located in Rochester, Indiana. Between the dates of June 24 and July 2, 1991, five individuals acting at the request of the Rochester Police Department purchased fireworks from Windy City.

Each of the eight subject transactions involved the sale of fireworks unapproved for retail sale in Indiana.² With one exception, each purchase was accompanied by the purchaser's execution of a statement indicating that the fireworks were for use and distribution outside the state of Indiana.³ On July 2, 1991, Gary Calvert purchased unapproved fireworks but did not sign an accompanying statement. This transaction formed the basis for Windy City's sole conviction.

I.

Written Assurance Pursuant to ILC.

The State contends that retail sales of fireworks are exclusively governed by I.C. 22-11-14-8 and that wholesale sales of fireworks are exclusively governed by I.C. 22-11-14-4, Thus, the State argues, 1.C.,, 22-11-14-4(b) should not be construed to permit retail sales of unapproved fireworks to members of the general public upon the purchaser's execution of a statement of intent to ship the fireworks out of state. The State relies upon the statutory interpretation of I.C. 22-11-14-4 embodied in Hill v. State (1986), Ind., 488 N.E.2d 709.

Erma Hill sold fireworks which were unapproved for retail sale in Indiana to one George Oakley. Oakley, an Illinois resident, signed a statement indicating that he would "immediately ship all Indiana illegal fireworks directly out of the state of Indiana or have or acquire any necessary permits required by law." Hill, supra, at 710. At the time of the subject transaction, .C. 22-11-14-4 provided:

"Nothing in this act shall be construed to prohibit any resident wholesaler, dealer, or jobber to sell at wholesale such fireworks as are not herein prohibited; or the sale of any kind of fireworks provided the same are to be shipped directly out of state; or the use of fireworks by railroads or other transportation agencies for signal purposes or illumination, or the sale or use of blank cartridges for a show or theater, or for signal or ceremonial purposes in athletics or sports, or for use by military organizations."

The Indiana Supreme Court affirmed Hill's conviction of selling fireworks illegally, concluding that 1.0. 22-11-14-4 did not create an exception to I.C. 22-11-14-8 or I.C. 22-11-14-6. Id. at 710.

Windy City argues that I.C. 22-11-14-4 has - undergone - substantial | legislative changes since the decision; thus, Héll is no longer applicable.⁴ Windy City contends that substantive changes are evidenced by the provision for a written assurance and the potential imposition of criminal penalties upon the purchaser.

1.0. 22-11-14-8, entitled "Fireworks for sale at retail; limitations" provides:

"A person shall not sell at retail, or offer for sale at retail, any fireworks, novelties, or trick noisemakers other than the following:

(1) Dipped sticks or wire sparklers. However, total pyrotechnic composition may not exceed one hundred (100) grams per item. Devices containing chlorate or perchlorate salts may not exceed five (5) grams in total composition per item.

(2) Cylindrical fountains.

(8) Cone fountains.

(4) Muminating torches.

(5) Wheels.

(6) Ground spinners.

(7) Flitter sparklers.

(8) Snakes or glow worms.

(9) Smoke devices.

(10) Trick noisemakers, which include::

(A) Party poppers.

(B) Booby traps.

(C) Snappers.

(D) Trick matches.

(E) Cigarette loads.

(F) Auto burglar alarms."

1.0. 22-il-14-4, entitled "Wholesale sales; exports; signal or ceremonial purposes" provides:

"Sec. 4. (a) Nothing in this chapter shall be construed to prohibit:

(1) any resident wholesaler, manufacturer, importer, or distributor from selling:

(A) at wholesale fireworks not prohibited by this chapter; or

(B) fireworks not approved for sale in Indiana if they are to be shipped directly out of state within five (5) days of the date of sale;

(2) the use of fireworks by railroads or other transportation agencies for signal purposes or illumination;

(8) the sale or use of blank cartridges for: j

(A) a show or theater;

(B) signal or ceremonial purposes in athletics or sports; or

(C) for use by military organizations;

(4) the intrastate sale of fireworks not approved for sale in Indiana between interstate wholesalers; or

(5) the possession, sale, or disposal of fireworks, incidental to the public display of Class B fireworks, by wholesalers or other persons who possess a permit to possess, store, and sell Class B explosives from the Bureau of Alcohol, Tobacco and Firearms, United States Department of the Treasury.

(b) For the purposes of this section, a resident wholesaler, importer, or distributor, is a person who:

(1) is a resident of Indiana;

(2) possesses for resale common fireworks approved or not approved for sale in Indiana;

(3) is engaged in the interstate sale of common fireworks described in subdivision (2) as an essential part of a business that is located in a permanent structure and is open at least six (6) months each year;

(4) sells common fireworks described in subdivision (2) only to purchasers who provide a written and signed assurance that the fireworks are to be shipped out of Indiana within five (5) days of the date of sale; and

(5) has possession of a certificate of compliance issued by the state fire marshal under section 5 of this chapter.

(c) A purchaser may not provide a written and signed assurance that the fireworks purchased are to be shipped out of Indiana and then sell or use them in Indiana."

Windy City and amicus Indiana Fireworks Dealers Association contend that the sale of fireworks identified in 1.0. 22-11-14-8 is prohibited only where the "purchaser" (whether wholesale or retail) fails to execute a requisite statement of intent. They rely upon IND.CODE 22-11-14-10(b) which provides:

"Each resident wholesaler shall post in a prominent location in the wholesaler's place of business a sign that reads as follows:

'Under Indiana law, a resident wholesaler of fireworks may sell fireworks not approved for sale in Indiana only to other resident wholesalers and to purchasers who provide a written and signed assurance that the fireworks are to be shipped out of Indiana within five (5) days of the date of sale. A purchaser who provides a written and signed assurance that fireworks purchased are to be shipped out of Indiana within five (5) days of the date of sale and who then sells the fireworks in Indiana or uses them in Indiana commits a Class A misdemeanor, which is punish able by imprisonment for up to one (1) year and a fine of up to five thousand dollars ($5,000).

The state fire marshal shall provide interstate wholesalers with signs for the purposes of this subsection."

A statute should be construed so as to ascertain and give effect to the intention of the legislature as expressed in the statute. In so doing, the objects and purposes of the statute in question must be considered as well as the effect and consequences of such interpretation. Holmes v. Review Bd. of Ind. Employment Sec. Div. (1983), Ind.App., 451 N.E.2d 83, 86. When interpreting the words of a single section of a statute, this court must construe them with due regard for all other sections of the act and with regard for the legislative intent to carry out the spirit and purpose of the act. Detterline v. Bonaventura (1984), Ind. App., 465 N.E.2d 215, 218, reh. denied, trans. denied. We presume that the legislature intended its language to be applied in a logical manner consistent with the statute's underlying policy and goals. Id.

Although the Hill court did not construe 1.0. 22-11-14-4 in a form identical to the present language, the expression of public policy underlying the enactment of the fireworks laws is nonetheless viable:

"While it is true that the common meaning given the punctuation used in Ind. Code § 22-11-14-4 would suggest that an exemption exists for fireworks sold wholesale or retail for shipment out of state, we are not obligated to engage in a debate on the significance of semicolons and disjunetives when doing so renders the statute absurd or produces a result repugnant to the apparent intent of the legislature. Spaulding v. Harvey (1856), 7 Ind. 429.

The framework provided by the General Assembly seems plain enough. It mani fests a desire to reduce the number of children and adults burned or injured by fireworks. The legislature has determined that certain fireworks are safe for retailing to the general public and that others are not. Dealers are allowed to sell all fireworks at wholesale and all fireworks may be shipped out of state. Appellants see in this scheme the proverbial loophole: the customer walks in the store, signs a statement that he intends to ship all illegal fireworks out of state, buys individual items, and drives away. Although Oakley was asked to show his drivers license to show that he was not an Indiana resident, if we accept the Hills' argument that they are exempted because the fireworks were to be 'shipped directly out of state', the residence of the purchaser would be of little moment.

We conclude that reading the phrase 'shipped directly out of state' as an exception to the rule that only certain listed fireworks can be sold at retail required that the term 'shipped' be read to mean a method of delivery which does not result in the product being placed in general distribution within the state. It means that jobbers may sell crates of fireworks and ship them to Illinois; it does not mean that fireworks salesmen can have their customers sign a form and then hand them a paper bag of cherry bombs. The loophole is closed."

Hill, supra, at 710-11.

I.C. 22-11-14-4(b) (defining a resident wholesaler, importer or distributor) and 1.C. 22-11-14-10(b) (reciting the language of required signage in a resident wholesaler's place of business) must be construed in the context of the remaining sections of the fireworks act. Were we to construe subsection (b) of 1.C. 22-11-14-4 as a statutory exception to I.C. 22-11-14-8, we would ignore the plain language of I.C. 22-11-14-8 providing that a "retail" sale of any fireworks other than those specified is illegal.⁵ Neither a definitional subsection concerning wholesalers or a recitation of required sign terminology should be construed so as to nullify the explicit language of I.C. 22-11-14-8 making retail sales of unapproved fireworks unlawful.

We agree with the State that the enact ment of the above-referenced subsections did not substantively change the fireworks law as to retail sales. By enactment of the 1985 statutory amendment, the legislature altered the law governing wholesale sales to provide for execution by the purchaser of a statement of intent to ship unapproved fireworks out of state, subject to criminal penalty. No companion provision was inserted into the section governing retail sales. We conclude that a retail sale of items not approved for retail sale in Indiana cannot be legitimized by the execution of a statement of intent to ship the prohibited items out of state.

IL.

Jury Instruction

Next, the State contends that Final Instruction 9 was erroneous in that: (1) it incorporated the language of I.C. 22-11-14-10(b) and (2) stated that "Indiana law does not allow a wholesaler to sell unapproved fireworks at retail sale to the ultimate consumer, wunder circumstances where a mere shom written assurance is provided." Record, p. 80. The State argues that the jury was erroneously invited to conclude that a retail sale otherwise prohibited by I.C. 22-11-14-8 was legitimized by the consumer's execution of a genuine written assurance of intent to ship the fireworks out of state. In light of the statutory analysis in Issue I, supra, we conclude that Instruction 9 was misleading to the jury.

We sustain the appeal and conclude that 1.C. 22-11-14-4(b) does not create a statutory exception to I.C. 22-11-14-8.

HOFFMAN, J., concurs. BAKER, J., concurs and files separate opinion.

1 . IND.CODE 22-11-14-8.

2 . See I.C. 22-11-14-8.

3 . Each customer executed a statement of intent representing himself or herself as an individual consumer, rather than as a wholesaler or agent of a wholesaler.

4 . Windy City relies upon this court's decision in State v. King (1987), Ind.App., 502 N.E.2d 1366. The State appealed the dismissal of an information alleging that King unlawfully sold at retail prohibited fireworks. This court reversed the dismissal of the information but, in dicta, stated: "[Tlhe submitted affidavits by Supplier, on their face, appear to present a statutory exception to IC 22-11-14-8[.]" Id. at 1370 (emphasis added).

5 . The language of I.C. 22-11-14-8 is unchanged since the HZ! decision.