CITY OF DETROIT v QUALLS
Docket No. 83408
Supreme Court of Michigan
April 3, 1990
Rehearing denied post, 1213.
434 MICH 340
Argued June 7, 1989 (Calendar No. 7).
In an opinion by Justice BOYLE, joined by Chief Justice RILEY
The defendant was not precluded from relitigating in 1984 the issue whether the Detroit fireworks ordinance was valid, insofar as it restricted the storage of fireworks by retailers to one hundred pounds or less, because the city failed to persuade the Supreme Court that the ruling that the ordinance was valid actually was litigated and determined in the prior proceeding and was essential to the judgment issued in 1982. The state did not preempt local communities from regulating the quantity of fireworks a retailer could store within community boundaries. The storage limitation provision in the Detroit ordinance does not conflict with the state fireworks act and was a valid and reasonable exercise of the city‘s police power within the ambit of due process and equal protection.
- A ruling on a summary judgment motion in a forfeiture proceeding may have binding effect. Appropriate resolution of the collateral estoppel question turns not on whether the inquiring court characterizes the first proceeding as summary, but rather upon a finding that in the prior proceeding the issue of fact or law was actually litigated and actually determined by a valid and final judgment, and that the determination was essential to the final judgment. In order that collateral estoppel may apply, the issue to be concluded must be the same as that involved in the prior action, and must have been raised, litigated, and actually adjudged; it must have been material and relevant to the disposition of the prior action; and its determination must have been necessary and essential to the resulting judgment.
- In this case, the issue whether the storage provision in the ordinance was valid was raised in 1982. However, the city failed to persuade the Supreme Court that the ruling that the storage provision in the ordinance did not conflict with statutory language and that the limitation was reasonable and a valid exercise of the city‘s police power was actually litigated and determined, or that the determination was necessary and essential to the resulting judgment concerning forfeiture. Therefore, the defendant was not precluded from raising the issue as an affirmative defense when prosecuted in 1984, and the Court of Appeals erred in concluding that the ruling in 1982 was not significant to the present case because in 1982 the defendant failed to present any evidence which supported his claim that the ordinance was invalid. The Court additionally erred in concluding that the 1986 decision was not significant to resolution of the present case because the ruling addressed
only whether the ordinance conflicted with the statute, an issue not before the panel on remand. Accordingly, that portion of the decision of the Court of Appeals which addresses the collateral estoppel issue must be vacated. - The storage provision in the city‘s ordinance does not conflict with nor is it preempted by state law. The only requirement under state law, in regard to the amount of fireworks a retailer may maintain on a premises, is that it be a reasonable amount. The municipality retains reasonable control of fireworks. Accordingly that part of the Court of Appeals decision which held the storage provision of the ordinance to be a valid exercise of the police powers of the City of Detroit is affirmed. However, because the provision is rationally related to the public safety, the affirmance by the Court of Appeals of the district court‘s finding that the ordinance was unconstitutional must be vacated. Entry of judgment in this case is stayed, pending resolution of the remaining cases involving these parties in the Court of Appeals.
Affirmed in part, vacated in part, and judgment stayed.
Justice LEVIN, joined by Justice CAVANAGH, dissenting, stated that there is a conflict between the one-hundred-pound storage limitation of the Detroit fireworks ordinance and the storage provision of the fireworks statute, rendering the ordinance limitation invalid. The 1982 Wayne Circuit Court litigation does not control the disposition of this appeal.
The 1980 amendment of the fireworks statute was intended to except a retailer who has goods on hand for sale to the public in a supervised display area from the storage requirement of the act. The storage requirement applies to retailers when fireworks are stored and are not being displayed for sale at retail. The statute permits storage of class B and class c fireworks in excess of one hundred pounds upon compliance with its provisions. The ordinance, however, provides that the storage of fireworks in a place of retail sales is limited to a gross weight of less than one hundred pounds, inconsistent with the statute. The ordinance limitation being preëmpted by the statute is invalid.
Ordinarily the doctrines of res judicata or collateral estoppel would bar the defendant from relitigating in another civil action the question decided in the 1982 proceedings; however, in this case, because the storage requirement of the ordinance is invalid as conflicting with the statute, the basis on which the Court of Appeals found that the 1982 judgment was not controlling is not in point. As a matter of policy, the 1982 judg-
A question of public importance is presented for the first time in this court concerning the validity of an ordinance imposing limitations on the storage of fireworks in light of a state fireworks statute imposing different limitations on the storage of fireworks. The question having been presented, pursuant to the Supreme Court‘s grant of leave to appeal, it should be addressed on the merits in recognition of the difficulty faced by any litigant who might seek a ruling by the Supreme Court, particularly in regard to a determination, on summary disposition following abbreviated proceedings respecting the validity of an ordinance, entered in the context of litigation concerning the forfeiture of a relatively small quantity of fireworks.
166 Mich App 587; 421 NW2d 248 (1988) affirmed in part and vacated in part.
Donald Pailen, Corporation Counsel, Harnetha Jarrett, Assistant Corporation Counsel, and David L. Rose, Pro Hac Vice, for the City of Detroit.
Hugh M. Davis, Jr., for the defendant.
OPINION OF THE COURT
BOYLE, J. An issue regarding the validity of a provision in an ordinance may be resolved in a forfeiture proceeding on a summary disposition motion for purposes of collateral estoppel. We find, however, that the city failed to persuade this Court that the ruling holding the storage provision valid was necessary to the 1982 judgment concerning forfeiture of fireworks seized in 1979. Therefore, we hold that the defendant was not precluded from raising the issue as an affirmative defense when prosecuted in 1984 in 36th District Court. In addition, we conclude that the state did not preëmpt local communities from regulating the quantity of fireworks a retailer can store within its boundaries and that the storage provision in the
Having found that the state has not preëmpted this area of regulation, we address the issue whether there is any rational basis for the storage provision in the ordinance. We conclude that the storage limitation provision is a valid and reasonable exercise of the city‘s police power within the ambit of due process and equal protection.
Accordingly, we affirm the Court of Appeals holding that the storage provision in the ordinance did not conflict with state law, and vacate that part of the Court of Appeals decision which addresses the collateral estoppel issue. Further, we reverse the panel‘s decision affirming the 36th District Court‘s dismissal of the misdemeanor charge on the basis of its determination that the storage provision in the ordinance was unconstitutional.3 However, we stay entry of judgment in this case pending resolution of the remaining cases involving these parties in the Court of Appeals.4
Defendant Qualls operates a retail fireworks business in the City of Detroit and has been engaged in litigation with the plaintiff city since he began operations in 1978. A review of the background and prior litigation between the parties is pertinent to resolution of the issues in this case.
In 1981 the city brought a suit in Wayne Circuit Court against defendant for forfeiture of fireworks seized from the defendant‘s premises in 1979, alleging defendant‘s license only permitted him to sell and store legal fireworks in amounts of one hundred pounds or less, and that the confiscated fireworks were over one hundred pounds of illegal fireworks which were stored on defendant‘s premises in violation of the ordinance.5 In his answer defendant argued that the city was not entitled to forfeiture of the confiscated fireworks because the ordinance conflicted with state law, under which no limit was stipulated as to the amounts of class c or class B fireworks a retailer could sell and store, and that the one-hundred-pound limitation was unreasonable.6
At the hearing, defendant argued that the storage limitation was unreasonable and that the ordinance conflicted with state law and was not a
The court found that the state had not preëmpted local communities from regulating the storage of fireworks for retailers within their boundaries, that the ordinance did not conflict with the statute, and that the storage provision in the ordinance was a valid and reasonable exercise of the city‘s police power.8 The order, issued
[T]he City of Detroit Ordinance No. 314-H, Chapter 23, as it relates to the storage for retail sale of fireworks, is a valid exercise of the City‘s power, and the State of Michigan has not preëmpted this area of legislation and regulation, and the ordinance in that respect is valid and enforceable. [Detroit v Qualls, No 81-129784 CZ.]9
The defendant never appealed the judge‘s ruling that the storage provision in the ordinance was valid and that the state had not preëmpted this area of regulation.10
The case now before the Court began on July 2, 1984, when the city charged the defendant in the 36th District Court with three misdemeanor violations concerning the storage provision in the fireworks ordinance.11 The defendant moved to sup-
The city responded that Judge Hausner‘s 1982 order ruling that the storage provision in the
By virtue of the police powers, the Michigan Home Rule Statute and the Michigan Constitution which allows cities like Detroit to regulate in areas that relate to their municipal concern, and certainly the lives and protection and health and safety of our citizens is a municipal concern. Explosives are a municipal concern and by virtue of the police powers we are permitted to regulate in this area.
The defendant argued that there was evidence which proved that there was no danger from an explosion of any amount of US DOT class c common fireworks under any conditions. Defendant‘s expert, Dr. Conklin, testified at the hearing concerning the hazards associated with the storage of ten types of US DOT class c common fireworks when loaded into tubes, the means by which they are sold commercially. He stated that storage of these types of fireworks in tubes, in amounts over one hundred pounds, did not pose a mass explosive hazard.
The 36th District Court judge dismissed the misdemeanor charge for failure to limit storage of fireworks to under one hundred pounds15 on the basis that the ordinance was unconstitutional as applied to defendant in that he stored only US DOT class c common fireworks and the limitation was not rationally related to any interest in the safety and health of the citizens of Detroit:
I find . . . the City‘s interpretation of the ordinance limiting the amount stored to 100 pounds gross weight is not reasonably related to the City‘s interest in the health, safety, and welfare of its citizens. And, as such, is an arbitrary and unreasonable deprivation of the defendant‘s property.
The court did not reach the issue of preëmptior on the basis of its belief that that issue, in and of itself, was not dispositive.
In 1986, Judge Hausner conducted hearings in response to defendant‘s complaint for declaratory and injunctive relief. He addressed the issue whether the city‘s refusal to issue a license for the sale and storage of fireworks, which under state law can be sold and stored without a permit, was reasonable.18
In addition, the city appealed the dismissal of the citation in the 36th District Court, claiming that the storage provision in the ordinance was valid and that the district court was bound by Judge Hausner‘s 1982 determination in circuit
On December 11, 1984 the trial court granted the defendant motions dismissing each of the plaintiff‘s actions. The court found Ordinance 314-H Chapter 23 unconstitutional.
* * *
As the Wayne County Circuit Court is a superior court in relation to the 36th District, the latter court was bound by the determination of constitutionality. This court, not being one which is superior to the Circuit Court, is likewise bound by that determination.
Initially, the Court of Appeals affirmed the decision of the Detroit Recorder‘s Court to remand the case to district court for trial on the charge of storing excess fireworks. People v Qualls, 157 Mich App 552; 403 NW2d 594 (1987). The panel rejected the defendant‘s arguments that the storage limitation in the ordinance conflicted with the state statute or that the storage provision in the ordinance was not rationally related to public safety.21
Statutes are presumed valid; the burden of rebutting that presumption is on the person challenging the statute. [Citing Shavers v Attorney General, 402 Mich 554, 614; 267 NW2d 72 (1978), reh den 403 Mich 958 (1978), cert den 442 US 934 (1979).] The presumption of validity also applies to city ordinances. 1426 Woodward Avenue Corp [v Wolff], 312 Mich 352, 357; 20 NW2d 217 (1945)].
We believe that the ordinance in question is rationally related to the city‘s power to protect safety, health, and welfare. Obviously, fireworks are explosive and can cause great harm, especially when a large quantity is ignited. Clearly, limiting the amount of stored fireworks in a retail store located in a highly populated area is rationally related to safety. [Id., pp 556-557.]
The panel further noted that defendant‘s argument that because the district court‘s determination as to the constitutionality of the ordinance was based on evidence, it was a finding of fact and, thus, should not be overturned unless the finding was clearly erroneous, without merit:
Defendant failed to support its argument with citations to any authority. . . . Furthermore, it is well established that constitutionality is not a question of fact but one of law. 75 Am Jur 2d, Trial, § 414, p 452. Consequently, defendant‘s suggestion that the district court‘s decision should be reviewed under the standards used for review of factual questions must be rejected. [Id., p 558.]
The panel also found Judge Hausner‘s 1982 ruling25 not to be significant to the resolution of the issue whether the ordinance was a reasonable and valid exercise of the city‘s police power be-
However, the panel did note that it adhered to its previously expressed view that the fireworks ordinance did not conflict with, nor was it preëmpted by, state law:
[T]he Detroit fireworks ordinance at issue was not in direct conflict with either state statute,
MCL 750.243d ; MSA 28.440(4), or the national standards found in the National Fire Protection Association Code, No. 1124 (formerly 44A), because, unlike the state and federal provisions, the ordinance specifically applies to retail stores. 157 Mich App 555-556. [166 Mich App 601.]
This Court granted leave to appeal,26 and the issues briefed and addressed at oral arguments were: 1) whether the constitutional challenge was precluded by the doctrine of collateral estoppel because of the final judgment in the 1982 civil case that involved the same parties, 2) whether the fireworks ordinance is consistent with the Michigan fireworks act, and 3) whether there is a rational basis for the ordinance.
II
While we agree with the dissent that the defen-
Appropriate resolution of the collateral estoppel question turns not on whether the inquiring court characterizes the first proceeding as summary, but rather upon a finding that in the prior proceeding the issue of fact or law was actually litigated and actually determined by a valid and final judgment, and that the determination was essential to the final judgment.30 1 Restatement Judgments, 2d, § 27, p 250. Among the requirements courts have set out in order that collateral estoppel may apply are the following:
The issue to be concluded must be the same as that involved in the prior action. In the prior action, the issue must have been raised and litigated, and actually adjudged. The issue must have been material and relevant to the disposition of the prior action. The determination made of the issue in the prior action must have been necessary and essential to the resulting judgment. [1B Moore, Federal Practice, ¶ 0.443[1], p 759.]
The city is asserting collateral estoppel as a defense, and therefore, it is its burden to persuade the Court that the defendant was precluded from
The issue in 1982 concerned forfeiture of fireworks seized by the city in 1979, which the city alleged were sold illegally at defendant‘s place of business. The court ruled that the ordinance, insofar as it related to the sale and storage of fireworks for retail sale, was valid. The court also issued an order that the storage provision should be construed to mean that a retailer could store up to one hundred pounds of fireworks in any combination of class B and class c. It has never been established whether the fireworks which were confiscated in 1979 were class B or c, or whether the determination that the storage provision in the ordinance was valid was essential to the final judgment. In fact, the record indicates that some of the fireworks were returned to the defendant on the basis of what types of fireworks the items were and how they were classified under state law, and not on the basis that the amounts did not exceed the storage limitation.
In 1984, the city cited the defendant for violating the one-hundred-pound storage provision in the ordinance. The defendant asserted that the storage provision was invalid in that he stored only US DOT class c common fireworks and that there was no rational reason for a one-hundred-pound storage limitation. Thus, the determination whether the city was authorized to issue a citation for exceeding the storage limitation in the ordinance was necessary to the judgment whether the
The issue whether the storage provision in the ordinance was valid was raised in 1982. However, the city has failed to persuade this Court that the ruling that the storage provision in the ordinance did not conflict with statutory language and that the limitation was reasonable and a valid exercise of the city‘s police power32 was actually litigated and determined and that that determination was necessary and essential to the resulting judgment concerning forfeiture.33 Therefore, we hold that the defendant was not precluded from raising the issue as an affirmative defense when prosecuted in 1984 in 36th District Court.
Accordingly, we find that the Court of Appeals erred in concluding that Judge Hausner‘s ruling in 1982 was not significant to resolution of the present case because in 1982 the defendant failed to present any evidence which supported his claim that the ordinance was invalid. If an issue is raised, and the party who has the burden fails in his proof and the issue is decided against him, he is just as much bound by collateral estoppel as though he had presented an abundance of evidence.34
In addition, the panel erred in concluding that Judge Hausner‘s 1986 decision was not significant to resolution of the present case because the ruling addressed only whether the ordinance conflicted with the statute, an issue not before the panel on
In this case, the city asserted that the defendant was precluded from raising the issue concerning the validity of the storage provision in 1984 by the doctrine of collateral estoppel. We find that the city has not persuaded this Court that the ruling holding the storage provision valid was necessary to the 1982 judgment and, thus, that relitigation of the issue was precluded. Accordingly, we vacate that part of the decision of the Court of Appeals which addresses the collateral estoppel issue.
We also disagree with the dissent that the storage provision in the ordinance conflicts with or is preempted by state law. The dissent reasons that the state impliedly permits what it does not prohibit, and thus, since the statute does not prohibit retailers from storing over a specified amount of fireworks, a retailer should be permitted to store any amounts of class c or class b fireworks and any regulation concerning the storage of fireworks by the city would conflict with state law.37
What the dissent appears to be saying is that because the state allows storage of greater than one hundred pounds of class c or class b fireworks upon compliance with all of the requirements under the statute, i.e., local approval for storage buildings, distance requirements from railways, highways and inhabited buildings,38 the city could not limit the amount of fireworks a retailer kept at his place of business, which in this case was a building located less than twenty-five feet from the highway, next to a residential home, and across the street from a gas station.
The conclusion reached by the dissent is not supported in law or in fact. Absent a showing that state law expressly provides that the state‘s authority to regulate is exclusive,39 that the nature of the subject matter regulated calls for a uniform
The mere fact that the state, in the exercise of the police power, has made certain regulations does not prohibit a municipality from exacting additional requirements. . . . The fact that an ordinance enlarges upon the provisions of a statute by requiring more than the statute requires creates no conflict therewith unless the statute limits the requirement for all cases to its own prescription. Thus, where both an ordinance and a statute are prohibitory, and the only difference between them is that the ordinance goes further in its prohibition but not counter to the prohibition under the statute, and the municipality does not attempt to authorize by the ordinance what the legislature has forbidden or forbid what the legislature has expressly licensed, authorized, or required, there is nothing contradictory between the provisions of the statute and the ordinance because of which they cannot coexist and be effec
The only requirement under state law, in regard to the amount of fireworks a retailer may maintain on the premises, is that it be a reasonable amount. In other words, the municipality retains reasonable control of fireworks which is such control as cannot be said to be unreasonable and inconsistent with regulations established by state law.42 People v McGraw, 184 Mich 233, 238; 150 NW 836 (1915). This construction allows a municipality to recognize local conditions and enact rules and regulations peculiarly adapted to such conditions. It would be a strange rule indeed were it otherwise.
While general problems with reference to fireworks, i.e., wholesale storage of fireworks for shipment within or out of state, regulation of shipment within and out of state, and the use of different classes of fireworks within the state, are statewide concerns, the retail sale and storage of fireworks raise concerns that are local in character, i.e., the location of retailers with respect to densely populated areas, the number of retailers in an area, the amount of use of the materials, and the conflict between the dangers of fireworks and the use of these materials in the community. As hazardous materials, the very nature of fireworks lends itself unquestionably to regulation adapted to local conditions.43
Therefore, we reject the rationale employed by
IV
Having found that the state has not preempted this area of regulation, we address the issue whether the storage provision in the ordinance is unconstitutional. It is well established in Michigan that ordinances are presumed valid and the burden is on the person challenging the ordinance to rebut the presumption. People v Sell, 310 Mich 305; 17 NW2d 193 (1945); 1426 Woodward Ave Corp v Wolff, 312 Mich 352, 357; 20 NW2d 217 (1945).
In this case, the defendant challenged the constitutionality of the fireworks ordinance44 after he was charged with violating the storage limitation in 1984, admitting he had approximately four hundred pounds of explosives on the premises, but arguing that he stored only class c common fireworks and the ordinance as related to the storage of these fireworks was not reasonably related to the city‘s interest in the health, safety, and welfare of its citizens.45
The city asserts that the purpose of the storage limitation is to prevent fire and explosions and, thus, to protect the safety of the people, homes, and businesses in the city. This is clearly a legitimate purpose, and a limitation on the amounts of fireworks which a retail establishment can store within a city bears a rational relationship to public safety.
The defendant does not argue that the ordinance is unconstitutional on its face. Instead, the defendant asserts that it is unconstitutional as applied to him on the basis that he stores only US DOT class c common fireworks on the premises and that there is no danger in storing those types of fireworks in amounts exceeding one hundred pounds. The 36th District Court agreed with the defendant that the ordinance was unconstitutional as it applied to him because the city could not rebut the defendant‘s expert‘s testimony that class c fireworks stored alone were not dangerous, nor could it prove that the defendant stored both class B and
However, the lower court erred in failing to recognize that it was defendant‘s burden to rebut the presumption that there was a rational basis for the storage provision in the fireworks ordinance which limited retailers, who under state law need a permit to sell and store class B fireworks for shipment directly out of state, to storage of one hundred pounds of fireworks, in any combination or class,48 and that
in the face of a due process or equal protection challenge, “where the legislative judgment is drawn in question,” a court‘s inquiry “must be restricted to the issue whether any state of facts either known or which could reasonably be assumed affords support for it.” United States v Carolene Products Co, 304 US 144, 154; 58 S Ct 778; 82 L Ed 1234 (1938). A corollary to this rule is that where the legislative judgment is supported by “any state of facts either known or which could reasonably be assumed,” although such facts may be “debatable,” the legislative judgment must be accepted. Carolene Products Co v Thompson, 276 Mich 172, 178; 267 NW 608 (1936). [Shavers, supra, pp 613-614. Emphasis in original.]49
Thus, whether the defendant did, or did not, store class B fireworks was not determinative of the constitutional question. When asked whether amounts over one hundred pounds represented a danger from fire or explosion to persons outside the building, the expert testified, that if
[p]roperly situated within the building, that quantity of material could be stored without posing any hazard to people external . . . . I would strongly recommend that if one had a thousand pounds of gross weight, . . . to separate the cases so not all . . . would be involved in a fire at any one time . . . . [Emphasis added.]
Further, the danger of storing mixed fireworks in amounts over one hundred pounds was sufficient justification for the storage limitation in the ordinance. The record supports the city‘s claim that it was not unusual for dealers to mix class B and class c fireworks and that, when mixed, the fireworks are more likely to explode. The defendant‘s expert testified that there is a greater hazard involved in the storage of class B fireworks, and also that his assumption that the defendant stored only class c fireworks was based on information from the defendant. In fact, the defendant‘s expert testified he saw items which looked like class B fireworks when he was on the defendant‘s premises. In fact, contrary to the defendant‘s claims, the expert witness did not state that the storage of only class c fireworks in any amounts stored alone was not dangerous.
Thus, the city‘s storage limitation of one hun
Thus, on the basis of the “facts either known or which could reasonably be assumed” the city‘s judgment must be accepted, and, therefore, we find the storage provision in the ordinance is rationally related to public safety.
Accordingly, we vacate the decision of the Court of Appeals affirming the 36th District Court‘s finding that the ordinance was unconstitutional.
CONCLUSION
The defendant was not precluded from relitigating in 1984 the issue whether the ordinance was valid, insofar as it restricted the storage of fireworks by retailers to one hundred pounds or less, because the city has not persuaded this Court that the ruling that the ordinance was valid was actually litigated and determined in the prior proceeding and was essential to the judgment issued in 1982.
The Court of Appeals was correct in finding that the storage provision in the ordinance did not conflict with the storage limitations in the statute. However, we find that the Court erred in affirming the decision in 36th District Court that the ordinance was not rationally related to public safety and thus was unconstitutional.
Accordingly, we affirm the decision of the Court of Appeals that the storage provision in the ordi
This legal tug of war has generated a decade of litigation between these parties. It may well be that the Court of Appeals will sustain the ruling of the able trial judge who has lived with this situation for years, but we do not yet know that that is so. To avoid the possibility of setting off another round of fireworks below, we stay the effect of judgment in this case pending resolution of the cases now pending in the Court of Appeals.
RILEY, C.J., and BRICKLEY, ARCHER, and GRIFFIN, JJ., concurred with BOYLE, J.
LEVIN, J. (dissenting). Glen R. Qualls was charged on July 2, 1984, with the misdemeanor of violating a Detroit fireworks ordinance requiring that “[t]he storage of fireworks in a place of retail sales shall be limited to gross weight of less than one hundred (100) pounds . . . .”1
The Court of Appeals, on further appeal,2 rejected Qualls’ argument that the storage provision of the ordinance was in conflict with the storage provision of the state fireworks statute which provides that “[t]he storage of fireworks at the site of a wholesaler, dealer or jobber, except for a retailer who has goods on hand for sale to the public in a supervised display area, shall be as” thereafter set forth in the ordinance.3 (Emphasis added.)
| 201 to 400 | 35 | 200 | 70 | 200 |
| 401 to 600 | 40 | 200 | 80 | 208 |
| 601 to 800 | 45 | 200 | 90 | 252 |
| 801 to 1,000 | 50 | 200 | 100 | 292 |
| 1,001 to 2,000 | 58 | 230 | 115 | 459 |
| 2,001 to 3,000 | 62 | 296 | 124 | 592 |
| 3,001 to 4,000 | 65 | 352 | 130 | 704 |
| 4,001 to 5,000 | 68 | 400 | 135 | 800 |
| 5,001 to 6,000 | 70 | 441 | 139 | 882 |
| 6,001 to 8,000 | 73 | 509 | 140 | 1,018 |
| 8,001 to 10,000 | 75 | 565 | 150 | 1,129 |
| 200,001 or more | 110 | 1,765 | 220 | 3,530 |
[The figures for 10,001 to 200,000 are omitted.]
(c) A person shall not cause or allow smoking, matches, open flames, spark producing devices, or firearms inside of or within 50 feet of a building used for the storage of fireworks. A person shall not store combustible materials within 50 feet of a building used for the storage of fireworks.
(d) The interior of a building used for the storage of fireworks shall be kept clean and free from debris and empty containers. A person shall not use a building used for the storage of fireworks for the storage of any metal tools or any commodity other than fireworks.
(e) A person shall not provide a building used for the storage of fireworks with heat or lights, except that if lights are necessary, an electric safety flashlight or safety lantern shall be used.
(f) A building used for the storage of fireworks shall bear lettering on each side and top in letters not less than 4 inches high, the words “explosives—keep fire away.”
(g) A building used for the storage of fireworks shall be under the supervision of a competent person, who shall be not less than 18 years of age.
(h) In addition to the requirements of subdivision (b), salutes that do not qualify as class c fireworks shall be considered to be hazardous material and shall be stored in accordance with rules for the storage and handling of hazardous material promulgated under section 3c of Act No. 207 of the Public Acts of 1941, as amended, being section 29.3c of the Michigan Compiled Laws. [1980 PA 422,
MCL 750.243d ;MSA 28.440(4) . Emphasis added.]
On remand, the Court of Appeals said that it could not, after review of the evidentiary record made in the district court, find clear error in the district judge‘s finding that the storage provision of the ordinance was unconstitutional because it was “‘not rationally related to any interest in the safety and health to the citizens of Detroit.’ ”5
The Court of Appeals, as required by the order of remand, considered the significance of the 1982 Wayne Circuit Court proceedings. It said that the Recorder‘s Court had erred in holding that the district court was bound by the Wayne Circuit Court judgment sustaining the validity of the one-hundred-pound limitation.6 It concluded that those “abbreviated proceedings” were of “no significance” in the resolution of “the constitutional issue at bar.”7
The Court of Appeals affirmed the decision of the district court dismissing the charge.
We agree with the Court of Appeals that the decision of the Court of Appeals in the 1982 Wayne Circuit Court litigation does not control the disposition of this appeal. Qualls is not precluded from defending, on the basis that the one-hundred-pound storage requirement is invalid, against the charge that he committed a misdemeanor in storing more than one hundred pounds of fireworks.
We conclude that there is conflict between the one-hundred-pound storage limitation of the ordinance and the storage provision of the statute. We, therefore, agree, although on different grounds, with the conclusion of the Court of Appeals that the one-hundred-pound limitation is invalid. There is, therefore, no need to consider whether there is a rational relationship between the one-hundred-pound limitation and public safety, health, and welfare.
The fireworks statute, before it was amended in 1980 by the addition of the words “except for a retailer who has goods on hand for sale to the public in a supervised display area,” required the storage of fireworks at the site of a wholesaler, dealer, or jobber to be in accordance with provisions there set forth.8
The Attorney General provided an opinion in August, 1979, that the storage requirements of the statute applied to a person who sells goods at retail because a person who sells goods at retail is a “dealer” within the meaning of that term as used in the statute. The Attorney General went on to say that “the display of fireworks for sale at retail” need not “be made in a facility which meets the stringent requirements for the storage of fireworks” because the term “storage” did not apply to “goods or merchandise on hand for immediate sale and disposition.” (Emphasis supplied.) He concluded that the provisions of the statute concerning the storage of fireworks did not apply “to the displaying of fireworks for sale by a retailer,” but “observed that the quantity which is displayed for retail sale should be limited to a reasonable amount so as not to constitute the storage of fireworks.”9
The enactment of the 1980 amendment of the fireworks statute, excepting from the storage requirements of the statute a retailer who has “goods on hand for sale to the public in a supervised display area,” was prompted by continued efforts in some counties, despite the opinion of the Attorney General, to apply the storage require
The city contends that there is no inconsistency between the storage requirements of the ordinance and of the statute “because state law [statute] pertains to limits on wholesale dealers, while the Ordinance applies to retail dealers.” The 1980 amendment, excepting from the storage provisions of the statute only goods held by a retailer on hand for sale to the public in a supervised display area, appears to confirm the view expressed by the Attorney General that the storage provisions of the statute apply to retailers when they “store” fireworks and are not displaying them for sale at retail.
The city‘s argument ignores that the purpose of the 1980 amendment was to relieve retailers of what some regarded as the “unreasonable hardships”14 posed by the storage requirements set forth in the statute when applied with respect to fireworks on hand for sale to the public in a supervised display area.
II
In an action commenced by the city against Qualls in July, 1981, a Wayne circuit judge entered a judgment in 1982, two years before the charges in the instant case were lodged,15 declaring that “the storage for retail sale of fireworks, is a valid exercise of the City‘s power, and the State of Michigan has not preempted this area of legislation and regulation, and the ordinance in that respect is valid and enforceable.”16 Qualls did not appeal.
Ordinarily, the doctrines of res judicata or collateral estoppel would bar Qualls from relitigating
Because we agree with the Court of Appeals that the storage requirement is invalid, not on the basis that there is not a rational relationship between the one-hundred-pound storage requirement and the protection of public health, safety, and welfare, but on the basis that the storage requirement of the ordinance conflicts with the statute, as amended in 1980, the basis on which the Court of Appeals found that the 1982 judgment was not controlling is not in point. We conclude, however, that the 1982 judgment, entered following the “abbreviated proceedings,” should not, as a matter of policy,18 preclude Qualls from defending on the ground that the ordinance is invalid because it conflicts with the statute, as amended, against the
A question of public importance is presented for the first time in this Court concerning the validity of an ordinance imposing limitations on the storage of fireworks in light of a state fireworks statute imposing different limitations on the storage of fireworks. The question having been presented, pursuant to this Court‘s grant of leave to appeal, it should be addressed on the merits in recognition of the difficulty faced by any litigant who might seek
CAVANAGH, J., concurred with LEVIN, J.
Notes
(a) Permit required fee. Storage of fireworks allowed to be sold under this division shall be allowed only after issuance of a permit indicating that the place of storage is approved by the fire marshal.
(b) Retail sales. The storage of fireworks in a place of retail sales shall be limited to a gross weight of less than one hundred (100) pounds and shall be stored in a Type 2 Indoor Magazine. Places of storage other than retail sales shall meet the minimum requirements of Pamphlet 44A (Manufacture, Transportation and Storage of Fireworks) of the National Fire Protection Association. Percent of the permitted storage amount in a place of retail sales shall be on display. All fireworks in places of retail sales shall be returned to the magazine at the end of the business day. [Fireworks Ordinance of the City of Detroit; Ordinance 314-H, as amended, Municipal Code, § 19-3-70. Emphasis added.]
(a) In a 1 story, noncombustible building without a basement, which building is weather resistant, well ventilated, and equipped with a strong door kept securely locked except when open for business.
(b) The location of the storage building shall be approved by the local governing authority having jurisdiction, and shall be located not less than the following distances from inhabited buildings, passenger railroads, and public highways according to the number of pounds of fireworks stored, rounded to the nearest pound:
| Net Weight of Fireworks | Distance From Passenger Railways and Public Highways | Distance From Inhabited Buildings | ||
|---|---|---|---|---|
| Class C Fireworks | Class B Fireworks | Class C Fireworks | Class B Fireworks | |
| Pounds | Feet | Feet | Feet | Feet |
| 100 or less | 25 | 200 | 50 | 200 |
| 101 to 200 | 30 | 200 | 60 | 200 |
In light of these statutory changes, we believe that the rationale of the Recorder‘s Court in this case recited in support of its decision to reverse in part the judgment of the 36th District Court—i.e., that a circuit court judgment upholding the constitutionality of the challenged fireworks ordinance operated as binding precedent on the Recorder‘s Court—is incorrect. [Id., p 593.]
The Court of Appeals also concluded that the subsequent 1986 Wayne Circuit Court proceedings were of no significance to theCourt: But the Attorney General didn‘t say that a hundred pounds would be unreasonable, he just said that that statute limiting wholesalers to a hundred pounds didn‘t apply to retailers. Why is it unreasonable for the City of Detroit to set a hundred pound limit?
Ms. Cumbey: A hundred pounds could be sold in half an hour. There‘s just no way you could keep sufficient inventory on hand.
* * *
Court: Well, but the legislature didn‘t authorize more than 100 pounds.
Ms. Cumbey: Well, we maintain that by exempting retail dealers from the storage requirements, in effect, they did.
The Court, in its 1988 opinion (People v Qualls [On Remand], n 5 supra, p 601), referred to its 1987 opinion (People v Qualls, n 2 supra, p 556) where the Court had declared:
In the present case, the city fireworks ordinance refers to gross weight, though the state statute and national standards use net weight. As a result, the maximum weight of fireworks a person may stock is substantially lower under the ordinance than under the other two provisions.
We hold that the Detroit fireworks ordinance is not in direct conflict with either the state statute or the national standards. The state statute applies to wholesalers, dealers, and jobbers. It was specifically amended to except retailers in 1980. The national standards apply to process buildings, magazines, and storage buildings. The ordinance applies to retail stores.
Defense counsel argued that the issue concerning the validity of the ordinance was not before the court, and the court disagreed, noting that the city‘s forfeiture motion raised the issue whether the seizure was within the law and that the defendant‘s response was that the ordinance was invalid. See n 3 for text.I‘m saying that the state has not preëmpted—as a matter of law, the State has not preëmpted local communities from regulating the retail sale of fireworks within their boundaries, and that Detroit‘s ordinance, the presumption is of reasonableness, that of validity, and I have nothing to show me that it‘s invalid for them to adopt a hundred pound limitation.
OAG, 1979-1980, No 5536, pp 335, 336-337 (August 9, 1979).IT IS HEREBY ORDERED that the City of Detroit Fire Ordinance Code is construed to mean that a retail seller may store no more than 100 pounds of fireworks in any combination of Class B and Class c. Class B items may be stored only for immediate sale for out of state transportation. Net weight is the weight of fireworks not including shipping cartons, but does include the pyrotechnic material, any fuse material, and any paper or other restraining material.
The Michigan Penal Code establishes certain requirements for the storage of fireworks at the site of a “wholesaler, dealer, or jobber,” which include regulations governing the type of building within which fireworks may be stored, the location of such a building, and the distance which such a building must be from railways, highways, and other buildings. Violation of these requirements is a misdemeanor. In opinion no. 5536 issued August 9, 1979, the attorney general held that while a retailer must comply with these regulations when storing fireworks, the requirements do not apply to the display of fireworks for sale at retail. Despite this ruling, prosecutors in some counties reportedly continue to hold that the penal code‘s storage requirements apply to fireworks on display for sale at retail. There are those who believe that the application of fireworks storage requirements to retailers imposes unreasonable hardships, particularly given that retail outlets have to meet local fire codes which should provide adequate protection to the public without additional regulations. Thus, they would like to see the law clarified to exempt retailers who have fireworks on display for sale to the public from these requirements. [House Legislative Analysis, SB 1095, December 4, 1980. Emphasis added.]
The Detroit Consumer Affairs Department which licensed the defendant‘s fireworks business issued Citation V-87-516, charging defendant with failure to maintain storage of fireworks to an amount under one hundred pounds, pursuant to city ordinance 314-H, contrary to the Municipal Code of the City of Detroit, § 23-4-9.
The Detroit Fire Department issued Citation V-87-517, failure to allow officials to perform the inspection, and V-250-085, refusal to allow entry by city officials for the purpose of making a lawful inspection. See n 3 for text.
Defense counsel also noted that the ordinance itself provided that it shall give way in the face of a conflict with state and federal regulations. Section 19-3-18(c) provides that the ordinance “is intended to be used in conjunction with existing laws and nothing in the article shall be construed as rendering other applicable laws invalid. In any situation where a conflict exists between a provision of this article and any existing law, the existing law shall prevail.” See n 1 for text.[T]he City‘s interpretation of the 100 pound limitation as gross rather than net is inconsistent with the accepted interpretations of the term in the various official codes and statutes and it is apparently inconsistent with the enabling paragraphs of the City‘s own fire code, and I am referring now to the Fire Prevention Code, Article 1, Section 23-1-1 which says in the last complete sentence of the first paragraph, “Compliance with all existing ordinances of the City of Detroit and laws, rules or regulations of the State of Michigan or compliance with approved nationally recognized safety standards shall be deemed to be prima facie evidence of compliance with this intent and purpose.”
Judge Hausner addressed different issues in 1986, that is, (1) whether the city could require a license to sell and store those items [classified as US DOT class c “common” fireworks] which under the statute,
Although an issue is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, relitigation of the issue in a subsequent action between the parties is not precluded in the following circumstances:
(1) The party against whom preclusion is sought could not, as a matter of law, have obtained review of the judgment in the initial action; or
(2) The issue is one of law and (a) the two actions involve claims that are substantially unrelated, or (b) a new determina
(3) A new determination of the issue is warranted by differences in the quality or extensiveness of the procedures followed in the two courts or by factors relating to the allocation of jurisdiction between them; or
(4) The party against whom preclusion is sought had a significantly heavier burden of persuasion with respect to the issue in the initial action than in the subsequent action; the burden has shifted to his adversary; or the adversary has a significantly heavier burden than he had in the first action; or
(5) There is a clear and convincing need for a new determination of the issue (a) because of the potential adverse impact of the determination on the public interest or the interests of persons not themselves parties in the initial action, (b) because it was not sufficiently foreseeable at the time of the initial action that the issue would arise in the context of a subsequent action, or (c) because the party sought to be precluded, as a result of the conduct of his adversary or other special circumstances, did not have an adequate opportunity or incentive to obtain a full and fair adjudication in the initial action. [Restatement Judgments, 2d, § 28, pp 273-274. Emphasis added.]
Cf. Pike v City of Wyoming, 431 Mich 589, 598-599, 608; 433 NW2d 768 (1988).
That a civil judgment against a defendant does not preclude his relitigating the same fact issues when they arise in a subsequent criminal prosecution, see, e.g., United States v Casale Car Leasing, Inc, 385 F2d 707 (CA 2, 1967); United States v Koenig, 388 F Supp 670 (SD NY, 1974). Cf. McKinney v Alabama, 424 US 669; 96 S Ct 1189; 47 L Ed 2d 387 (1976). [Restatement Judgments, 2d, § 85, comment h, p 303.]
See also Washington Twp v Gould, 39 NJ 527; 189 A2d 697 (1963), holding that a trailer-park operator prosecuted for expanding a nonconforming use in violation of a zoning ordinance was “estopped,” from challenging or raising as a defense to the prosecution the constitutionality of the provisions of the ordinance respecting trailer parks, by prior litigation which was terminated by entry of a judgment based on the stipulation of the parties allowing the trailer-park operator to continue to operate his trailer park with thirty-five spaces as a nonconforming use and which barred expansion except as provided by law and upon application to local officials and agencies.
* * *We hold that the Detroit fireworks ordinance is not in direct conflict with either the state statute or the national standards. The state statute applies to wholesalers, dealers, and jobbers. It was specifically amended to except retailers in 1980. The national standards apply to process buildings, magazines, and storage buildings. The ordinance applies to retail stores.
In lieu of granting leave to appeal, the judgment of the Court of Appeals is vacated and the case is remanded to the Court of Appeals for an expanded opinion. MCR 7.302(F)(1). On remand, the Court of Appeals shall address (a) the content and the significance, if any, of the factual record made in the 36th District Court, (b) the significance, if any, of the proceedings in Wayne Circuit Court files 81-129784-CZ and 85-515546-CZ (including any resolution of the pending appeals in the latter case), and (c) the rationale employed by the Detroit Recorder‘s Court in its decision to reverse in part the judgment of the 36th District Court and remand this case for trial. Jurisdiction is not retained.
[T]he 1981 statutory amendments provided that a final judgment or order made by the Detroit Recorder‘s Court in a misdemeanor or ordinance violation case from the 36th District Court is appealable to the Court of Appeals by leave granted. MCL 600.308(2)(c); MSA 27A.308(2)(c). See also MCR 7.203(B)(2). Thus, in ordinance violation cases reviewed on appeal from the 36th District Court by the Detroit Recorder‘s Court, an aggrieved party must seek further appellate review not in the circuit court, as before, but in the Court of Appeals. As a consequence, in such ordinance violation cases, the Detroit Recorder‘s Court and the Wayne Circuit Court no longer share a relationship of inferiority and superiority, respectively, but instead now enjoy an equal footing, with their final judgments and orders being subject to review by this Court.
In light of these statutory changes, we believe that the rationale of the Recorder‘s Court in this case recited in support of its decision to reverse in part the judgment of the 36th District Court—i.e., that a circuit court judgment upholding the constitutionality of the challenged fireworks ordinance operated as binding precedent on the Recorder‘s Court—is incorrect. [Id., pp 592-593.]
Thus, it is not surprising that the dissent fails to cite any legal authority whatsoever to support this strange contention, and we believe the Court should continue to recognize that, for purposes of collateral estoppel, a ruling rendered on a summary judgment motion will be considered a final disposition on the merits.“[i]t would be strange indeed if a summary judgment could not have collateral estoppel effect. This would reduce the utility of this modern device to zero . . . . Indeed, a more positive adjudication is hard to imagine.” [18 Wright, Miller & Cooper, Federal Practice & Procedure, § 4444, p 392, n 2, citing Exhibitors Poster Exchange, Inc v National Screen Serv Corp, 421 F2d 1313, 1319 (CA 5, 1970).]
The dissent incorrectly characterizes the Court of Appeals opinion as one which addresses an appeal of the 1982 ruling; however, the defendant never appealed Judge Hausner‘s 1982 ruling.We agree with the Court of Appeals that the decision of the Court of Appeals in the 1982 Wayne Circuit Court litigation does not control the disposition of this appeal. Qualls is not precluded from defending, on the basis that the one-hundred-pound storage requirement is invalid, against the charge that he committed a misdemeanor in storing more than one hundred pounds of fireworks. [Post, p 373. Emphasis added.]
We note that this situation is not one in which the forfeiture proceeding and the criminal prosecution involve the same goods, and the issue becomes whether an acquittal on criminal charges has any effect on forfeiture. See United States v One Assortment of 89 Firearms, 465 US 354; 104 S Ct 1099; 79 L Ed 2d 361 (1984); One Lot Emerald Cut Stones v United States, 409 US 22; 93 S Ct 489; 34 L Ed 2d 438 (1972).
Further, as the United States Supreme Court has recognized, there is no rule that the doctrine of collateral estoppel is made inapplicable per se by the fact that the subsequent proceeding involved a criminal case, even though the prior proceedings were civil in character. Yates v United States, 354 US 298; 77 S Ct 1064; 1 L Ed 2d 1356 (1957).
The defendant conceded that state law does not expressly preempt local regulation and restriction of fireworks, and argued only that it is clear from the detailed and pervasive statutory control scheme that the Legislature intended to establish uniform, statewide requirements with only certain specified controls being expressly delegated to the local governments, and that the Legislature did not intend to allow municipalities to regulate the sale and storage of fireworks for retail dealers within its locality. Id., p 325, n 12.