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 preempt 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 preempted 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.
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.
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 preempted 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.
The defendant never appealed the judge's ruling that the storage provision in the ordinance was valid and that the state had not preempted this area of regulation.
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.
The city responded that Judge Hausner's 1982 order ruling that the storage provision in the
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 pounds
The court did not reach the issue of preemption 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.
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
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 N.W.2d 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.
The panel also found Judge Hausner's 1982 ruling
However, the panel did note that it adhered to its previously expressed view that the fireworks ordinance did not conflict with, nor was it preempted by, state law:
This Court granted leave to appeal,
While we agree with the dissent that the defendant
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.
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 power
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.
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.
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,
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,
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.
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.
Therefore, we reject the rationale employed by
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 N.W.2d 193 (1945); 1426 Woodward Ave Corp v Wolff, 312 Mich. 352, 357; 20 N.W.2d 217 (1945).
In this case, the defendant challenged the constitutionality of the fireworks ordinance
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,
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 hundred
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.
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 ordinance
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...."
The Court of Appeals, on further appeal,
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.
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.
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."
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 requirements
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"
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,
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,
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.
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.
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.
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."
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, MCL 750.243d(a)-(g); MSA 28.440(4)(a)-(g), a person would need no permit to sell and store, and (2) whether the city could prohibit the sale of items to consumers for direct shipment and use out of state which is not prohibited by state law under MCL 750.243a(3)(g); MSA 28.440(1)(3)(g).
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:
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.
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 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 U.S. 354; 104 S.Ct. 1099; 79 L Ed 2d 361 (1984); One Lot Emerald Cut Stones v United States, 409 U.S. 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 U.S. 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.
Distance From Passenger Net Weight Railways and Public Distance From of Fireworks Highways Inhabited Buildings Class C Class B Class C Class B Fireworks Fireworks Fireworks Fireworks Pounds Feet Feet Feet Feet 100 or less 25 200 50 200 101 to 200 30 200 60 200 201 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 [The figures for 10,001 to 200,000 are omitted.] 200,001 or more 110 1,765 220 3,530
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:
See also Washington Twp v Gould, 39 N.J. 527; 189 A.2d 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.