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Doggie Freakout Devices

Green Mountain Fireworks v. Colchester, 2020 VT 64

By Elizabeth Kruska 

 Unpopular take: I don’t especially like fireworks. I never really understood them. I often went to see them on the Fourth of July with friends who liked them, so I’d go because they were going, not because I especially wanted to see the fireworks. (Sidenote: remember going places with friends? That was nice.) I know, however, that there are a lot of people who loooooooooove fireworks. Someone I know maps out where all the fireworks displays are in our area and on which days so she can go to as many as possible. To each their own.

And in keeping with “to each their own” there are people who like fireworks so much they’d like to display them. Or sell them! The thing about fireworks, though, is that they’re explosives. From a public safety standpoint, the government has a significant interest in making sure people aren’t doing things that are going to hurt themselves or others. Since we’re talking about products whose only job is to explode, and making them far more intrinsically dangerous than, say, apples, they’re going to be regulated very heavily. At least, regulated far more heavily than would be apples.

Yeah, yeah, I know. There’s going to be someone who says, “but actually….” And cite something about regulation of sales of apples. To which I say, are we seriously “but actually-ing” a comparison of apples and fireworks? I didn’t think so.

So, Mr. Matthew Lavigne, a person who likes fireworks a lot more than I do, decided he’d like to open a store to sell fireworks. He decided to call the store “Green Mountain Fireworks.” I don’t feel like it’s a secret what he was going to sell. Mr. Lavigne and Green Mountain Fireworks are consolidated in the case, so I’m going to call them Appellants for simplicity’s sake.

The Appellants got a license from the United States Bureau of Alcohol, Tobacco, Firearms[,] and Explosives (ATF) as an explosives dealer. (Another sidenote: I am a fervent user of the Oxford Comma. Deal with it.) They also got a building permit and a certificate of occupancy from the Town of Colchester Zoning Administrator. Seems like they’re doing what they need to do to open their store, or at least trying to do what they need to do. If they wanted not to follow the rules they could call their store, “Green Mountain Apples” and illegally sell fireworks out of the back of a van behind the dumpster, but they aren’t doing that. [Or perhaps in a van down by the river? Ed.]

Also, the town knew appellants were going to open a fireworks store, or at least that was the stated intended purpose, because they got a zoning permit for a place called “Green Mountain Fireworks” which seems pretty clear.

Anyway, not long after they opened, appellants got a visit from the Colchester Police who had a different view of the situation. And that view was that they were illegally selling fireworks without an appropriate municipal permit to sell fireworks. The Town Manager sent a letter saying the Town planned to seize the fireworks (the inventory, I assume) and seek criminal charges.

Appellants, meanwhile, filed in civil court seeking declaratory and injunctive relief. Basically, they argued that the fact that they got zoning permits, you know, from the town, and had an ATF license, meant they should be good to go. They also applied to the Town to get a fireworks retail permit, but the Town didn’t really have a process for that. I present a dramatization:

Applicant:       I’d like to sell fireworks.

Town:              You’re going to need a permit.

Applicant:       I’d like to apply for a permit.

Town:              We don’t really have a way for you to do that.

Applicant:       OK, well, I have these other permits, but now I need another one.

Town:              Yes.

Applicant:       OK, so I’d like to apply for it.

Town:              OK, we’ll email you something but we don’t really have a process.

Applicant:       *applies*

Town:              Denied.

There was a selectboard hearing on this, and the board found that the zoning permits didn’t permit the sale of fireworks, and that appellants would need a separate sale of fireworks permit. That part was denied, partly because the selectboard was concerned the appellants didn’t have a way to ensure that their customers had valid permits to display or possess fireworks.

The appellants then appealed this finding to the civil court.

The court, unfortunately for the appellants, sided with the Town. The court found that the applicable state statute requires a retail sale permit and that the zoning permits weren’t enough.

The appellants appeal to the Vermont Supreme Court, arguing that there is no requirement for a separate permit, and also that the state statute doesn’t give any guidance or standards for evaluating a permit application. Alternatively, they argue that the zoning permit should be enough, because in getting the zoning permit process there are standards to follow, and also because the cat is totally out of the bag that “selling fireworks” is the business’s plan. Last, they argue that the selectboard used the standard for displaying fireworks in its evaluation of whether or not the business could sell fireworks, and those are two different things, enforceable by two different bodies.

The Town counters by making a public safety argument, and says the legislature delegated the permitting authority to the towns.

SCOV says they’re both wrong and says the statute only allows municipalities to issue permits to sell fireworks for “supervised public displays” of fireworks. SCOV says the statute doesn’t permit retail sales of fireworks. This puts appellants in a spot: they can’t sell fireworks without a permit, and they can’t get a permit for the kinds of sales they want to do.

So, SCOV examines the statute to figure out the legislative intent.

First, it finds that a separate municipal sales permit is necessary and that the zoning permit isn’t enough. And, there has to be not only the municipal sales permit, but also the ATF explosives dealer permit. The way the statute is laid out, it would be inconsistent to say the ATF permit needs to go with a zoning permit rather than a sales permit.

Second, while the statute clearly requires the municipal sales permit, it doesn’t say anything else about the scope of the permit or what the standards for the permit are. Most importantly for this case – and for this small business – the statute doesn’t clarify whether the permitholder is allowed to sell fireworks on a retail consumer basis, or if they can only sell to someone who has a permit to display fireworks. There’s a nice footnote nudging the legislature to clear this up. It looks like someone could sell fireworks, generally, but it also looks like possession of fireworks without a display permit is illegal. These things don’t really go together, because it looks like someone can make a sale to anyone, but that buyers who don’t have display permits could be committing crimes for making the purchase. It makes more sense that the statute is meant to allow sales only to people who have fireworks-display permits.

Now SCOV looks at the legislative intent of the statute. Generally, in determining legislative intent, you look at the plain meaning of the words in the statute. If that doesn’t help, look for a definition section. If there isn’t one, or that also doesn’t help, you might have to examine the legislative history in order to find out what the legislature was talking about in sort of a larger sense when the bill was created.

Here, SCOV discovers that the legislature wrote this statute only about the sale of display fireworks, not about fireworks in general. This particular statute was amended in 2003, and went through a few iterations. Ultimately, the statute was also amended to clear up an inconsistency in the law that would allow permitted parties to do fireworks displays. The point of the statute was not to allow general retail sales of fireworks; that remained impermissible.

SCOV also found some contemporaneous press coverage from 2003, including testimony from a lobbyist with the U.S. Fireworks Safety Commission, urging the legislature not to expand sales of fireworks other than sparklers for public safety reasons. There was a headline in the Bennington Banner that read, “Senate Approves Legalizing Sparklers” and the article explained that under this statutory amendment sparklers were legalized for retail sale but bigger fireworks weren’t. Apparently for 50 years sparklers were illegal. You know what they say, when sparklers are outlawed, only outlaws will have sparklers.

The Department of Public Safety’s Division of Fire Safety (DFS) is in charge of regulating fireworks display permits. This makes sense since it involves literally lighting something on fire. SCOV goes through the DFS Building and Safety Code and found a regulation prohibiting sale of fireworks except as permitted for a supervised fireworks display. SCOV finds some inconsistent language about sparklers and consumer fireworks, but no definition of what “consumer fireworks” might be. While this isn’t clear, it is clear that sales are supposed to only be made for supervised public displays.

SCOV hammers this home by saying, “we conclude that it is unlawful in Vermont for any person to offer fireworks for sale except for permitted supervised public displays of fireworks.”

SCOV points out in a footnote that there might be retail fireworks stores operating in Vermont where the store owners got all the proper permits – ATF, municipal, what have you. And those retailers are operating in good faith because the municipalities may have set forth what look like legal hoops and the retailers jumped through those hoops. Everyone thought this was legal but maybe not. And it looks like as recently as 2018 a state representative introduced a bill to amend the statute again to clarify retail fireworks sales. While that bill didn’t pass, it looks like the point was to bring the existing legislation into compliance with what was happening on the ground. Also in this footnote – so now in two separate footnotes – the court tells the legislature they need to clean this up because there’s a disconnect.

Finally SCOV gets to it with respect to this particular appellant. The appellant operated a retail store with the plan of selling fireworks to consumers. They had previously sold fireworks in both St. Albans and Milton out of a tent. Then they wanted to open a brick and mortar location in Colchester. They wanted to sell fireworks to the public, not necessarily to people with permits for doing fireworks displays.

Taking this information against the (admittedly confusing) statute, SCOV concludes there’s no permit that exists for what appellant wants to do. So, SCOV affirms the lower court.