STATE of Indiana, Appellant-Plaintiff Below, v. WINDY CITY FIREWORKS, INC., Appellee-Defendant Below.
No. 25A03-9205-CR-162
Court of Appeals of Indiana, Third District.
Sept. 28, 1992.
599 N.E.2d 555
The convictions and sentences for Class A felony arson, Class C felony arson, and one count of Class D felony criminal mischief are affirmed; the convictions and sentences for two counts of Class B felony arson and seven counts of Class D felony criminal mischief are vacated. Remanded to the trial court for correction of sentences.
STATON, and SHIELDS, JJ., concur.
ON REHEARING
The State on rehearing asks this Court to clarify its decision regarding the effect of the sentencing modifications on the trial court‘s order of restitution. We decline to do so because our decision in no way affected the restitution order. It is clear from the record that the trial court ascertained appellant‘s ability to pay and specified a manner of payment, and it is clear from our decision that the court‘s restitution order stands. See
Rehearing denied.
Linley E. Pearson, Atty. Gen., Richard A. Brown, Pros. Atty., Rochester, for appellant.
Alan D. Burke, Rosemary Higgins Burke, Burke Law Office, Rochester, John H. Brooke, McClellan, McClellan, Brooke & Arnold, Muncie, for amicus curiae Ind. Fireworks Dealers Ass‘n.
STATON, Judge.
The State of Indiana brings an appeal pursuant to
- 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. - Whether Final Instruction 9 was erroneous.
We conclude that
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 I.C. 22-11-14-4(b)
The State contends that retail sales of fireworks are exclusively governed by
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,
“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
Windy City argues that
“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.
(3) Cone fountains.
(4) Illuminating 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.”
“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;
(3) the sale or use of blank cartridges for:
(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
“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 punishable 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
“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 disjunctives 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 manifests 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.”
We agree with the State that the enactment 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.
II.
Jury Instruction
Next, the State contends that Final Instruction 9 was erroneous in that: (1) it incorporated the language of
We sustain the appeal and conclude that
HOFFMAN, J., concurs.
BAKER, J., concurs and files separate opinion.
BAKER, Judge, concurring.
I concur with the result reached by the majority on Issue I. Our statutory scheme forbids fireworks wholesalers from selling particular fireworks to consumers, regardless of whether the consumer has pledged to remove the fireworks from Indiana within five days of the sale. I write separately to clarify the reasoning compelling this outcome.
For perfectly sound reasons, our General Assembly has concluded that some fireworks, being vastly more dangerous than others, should not be sold to the general public at retail. Hill v. State (1986), Ind., 488 N.E.2d 709. The list of those fireworks considered safe for sale to the consumer is set out in
What is in dispute, however, is the effect of
Sec. 4. (a) Nothing in this chapter shall be construed to prohibit:
(1) any resident wholesaler, manufacturer, importer, or distributor from selling:
* * * * * *
(B) fireworks not approved for sale in Indiana if they are to be shipped directly out of state within five days of the date of sale[.]
Windy City contends this language permits it to sell fireworks excluded from the
When construing a statute, our foremost duty is to determine and give effect to the true intent of the legislature. Indiana Dep‘t of Human Services v. Firth (1992), Ind.App., 590 N.E.2d 154, trans. denied. To do this, we must view the statute within the context of the entire act, rather than in isolation. Id. Absent a clearly manifested purpose to the contrary, we endeavor to give words appearing in the statute their plain and ordinary meaning. Id. We will not construe statutes in a manner leading to absurdity or hardship. Id.
Chapter 14 very clearly delineates a hierarchy of fireworks sellers and buyers. It provides definitions for “manufacturer,” “distributor,” “wholesaler,” and “retailer.”
Once this is understood, the resolution of the issue in dispute here becomes apparent.
Any argument employing the definition of “resident wholesaler”6 found in
Given our legislature‘s intent to protect our citizens from the more dangerous fireworks, we cannot agree that wholesalers may sell otherwise prohibited fireworks to consumers when it is plain retailers may not. Such a construction would utterly defeat the legislative purpose. See Firth, supra. To paraphrase Hill, supra, wholesalers may sell crates of otherwise prohibited fireworks to retailers, provided the fireworks are shipped directly out of state within five days of the sale, but wholesalers may not sell a crate of cherry bombs to a member of the general consuming public, whether or not that consumer removes the goods from Indiana promptly.
For the foregoing reasons, I concur in the result reached by the majority regarding Issue I. I concur fully with the majority opinion on the issue of the jury instructions.
Notes
(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.