PUBLISHED OPINION
Case No.: 94-1999
94-3295
†Petition for
review filed.
Complete
Title
of
Case:CITY OF WISCONSIN
DELLS,
Plaintiff-Respondent,
v.
DELLS FIREWORKS, INC.,
a Wisconsin corporation,
DIANE M. CORNELLIER,
and ANTHONY CORNELLIER,
Defendants-Appellants.†
Submitted
on Briefs: July 27, 1995
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: September 21, 1995
Opinion
Filed: September
21, 1995
Source
of APPEAL Appeals from a judgment and an order
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Columbia
(If
"Special" JUDGE: Lewis
Murach
so
indicate)
JUDGES: Eich,
C.J., Sundby and Vergeront, JJ.
Concurred:
Dissented:
Appellants
ATTORNEYSFor the defendants-appellants the
cause was submitted on the briefs of Douglas W. Kammer of Kammer Law
Office, Chartered of Portage.
Respondent
ATTORNEYSFor the plaintiff-respondent the
cause was submitted on the brief of Harry Sauthoff, Jr. of LaRowe, Gerlach
& Roy, S.C. of Madison.
COURT OF APPEALS DECISION DATED AND RELEASED September
21, 1995 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals pursuant to § 808.10 and Rule 809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
Nos. 94-1999
94-3295
STATE OF WISCONSIN IN
COURT OF APPEALS
CITY
OF WISCONSIN DELLS,
Plaintiff-Respondent,
v.
DELLS
FIREWORKS, INC.,
a
Wisconsin corporation,
DIANE
M. CORNELLIER,
and
ANTHONY CORNELLIER,
Defendants-Appellants.
APPEALS
from a judgment and an order of the circuit court for Columbia County: LEWIS MURACH, Judge. Affirmed.
Before
Eich, C.J., Sundby and Vergeront, JJ.
VERGERONT,
J. Dells Fireworks, Inc., Anthony
Cornellier and Diane M. Cornellier appeal from a summary judgment permanently
enjoining them from selling or delivering fireworks except under certain
conditions. They also appeal from an
order finding them in contempt of that injunction.[1] The trial court concluded that Dells
Fireworks, Inc. and the Cornelliers (collectively, "Dells Fireworks")
had violated § 167.10(2) and (3), Stats.,
which regulates the sale and use of fireworks, and the City of Wisconsin Dells
ordinance which mirrors the statute.
Section 167.10(2) and (3) limits and defines the situations in which
fireworks may be sold, used or possessed.
With certain exceptions, sales are prohibited except to persons holding
permits under the statute.[2]
Dells
Fireworks contends that: (1) the trial
court erred in concluding that the devices it sold were fireworks within the
meaning of § 167.10(1), Stats.;
(2) because of its federal license under 18 U.S.C. § 843,[3]
Dells Fireworks is incapable of violating § 167.10(2); (3) the persons to
whom it sold the devices had proper permits under §§ 167.10(2)(a) and
167.10(3)(c)6; and (4) the dismissal of a related action in another branch of
the trial court requires the dissolution of the injunction. We reject each of these contentions and we
affirm the injunction. We also affirm
the order finding Dells Fireworks in contempt and the remedies imposed.
BACKGROUND
Dells
Fireworks, Inc. has its place of business in the City of Wisconsin Dells. The City of Wisconsin Dells filed a
complaint against Dells Fireworks, Inc. and Diane and Anthony Cornellier (both
of whom are officers, directors, shareholders and employees of the corporation)
alleging that the Cornelliers sold certain specified types of fireworks to four
individuals who did not have user permits issued by the city as required by § 167.10(3)(a),
Stats., but instead had
"alleged permits" which Dells Fireworks sold them for two dollars at
the time of purchase.[4] The complaint alleges that these sales were
violations of the statute and the city ordinance and that the defendants have
been asked to stop making such sales but have refused and are continuing to
make such sales. The complaint seeks a
forfeiture for each ordinance violation and an injunction against future
violations.
The
alleged permits are attached to the complaint.
They purport to be applications for membership in the Wisconsin
Fireworks Association, which is described as a non-profit corporation whose
primary purpose is to educate the public on the proper use of "Class
C-D.O.T. Common fireworks." The
alleged permits (herein referred to as WFA membership forms) state that as a
member of WFA "you have the right to purchase, possess and use fireworks
in the State of Wisconsin. You may only use them on the property and the dates
shown on the Association's permit."
Each of the attached WFA membership forms contains the name of one of
the four purchasers named in the complaint; states that "Membership is
received and permit authorized on behalf of the Wisconsin Fireworks
Association"; and is signed by Dells Fireworks, Inc., as a representative
of the Wisconsin Fireworks Association.
The forms also state that WFA is not liable for any injury occasioned by
transportation, handling, storage, sale or use of fireworks.
The
answer admits that "certain fireworks" were sold to the four
individuals; denies that fireworks permits were sold to them; and affirmatively
alleges that the four individuals are members of the WFA and that, on
information and belief, members of the WFA have valid permits issued by the
appropriate municipalities to discharge fireworks in eighteen locations in the
state. The answer alleges, on
information and belief, that the "items recited in the plaintiff's
complaint do not constitute `fireworks' as defined by [§ 167.10(1), Stats.]."[5]
The
answer also alleges that the ordinance violations asserted in the complaint
were the subject of a forfeiture action pending in another branch of Columbia
County Circuit Court. That action was
brought by Wisconsin Dells against Diane Cornellier. On the motion of Dells Fireworks, the trial court in this action
dismissed the claim for forfeitures under the ordinance because of the other
action, but refused to dismiss the claim for injunctive relief.
Wisconsin
Dells moved for summary judgment and each side submitted affidavits and other
documents. The trial court determined
there were no issues of fact and that Wisconsin Dells was entitled to summary
judgment enjoining Dells Fireworks from selling or delivering the fireworks
contrary to law as a matter of law. The
trial court concluded that although Dells Fireworks had a federal permit, under
§ 167.10(2)(a), Stats., it
could not sell fireworks to the individuals named in the complaint unless they
had permits issued by a municipality in which the fireworks were to be used, in
conformity with § 167.10(3)(c).
The trial court assumed that the WFA held a permit that was valid under
the statute, but rejected Dells Fireworks' argument that therefore every WFA
member held a valid permit. A written
injunction was entered on May 11, 1994.
On
June 7, 1994, Wisconsin Dells moved for an order finding Dells Fireworks in
contempt for violating the injunction.
On June 17, 1994, Dells Fireworks moved for an order setting aside the
injunction and dismissing this case on the ground that on June 16, the trial
court in the separate forfeiture action against Diane Cornellier had dismissed
the charges. The basis for dismissal
was that she was exempt from the requirements of § 167.10(2) and (3), Stats., because of a federal
license. The trial court in this action
denied Dells Fireworks' motion, stating that the decision in the other branch
was not binding.
After
an evidentiary hearing on the contempt motion, the trial court found that the
defendants had violated the injunction by continuing to use WFA memberships so
as to circumvent the statutory permit requirements and that this conduct was
intentional and not in good faith. The
trial court imposed various penalties and remedies. Details of the contempt hearing and order will be discussed later
in the opinion.
STANDARD OF
REVIEW
We
review a grant of summary judgment de novo by applying the same
standards employed by the trial court. Brownelli
v. McCaughtry, 182 Wis.2d 367, 372, 514 N.W.2d 48, 49 (Ct. App.
1994). Summary judgment is appropriate
where there are no genuine issues of material fact and the moving party is
entitled to judgment as a matter of law.
Section 802.08(2), Stats.
The
resolution of this appeal involves an interpretation of § 167.10, Stats., which is a question of law that
we review de novo. See Tahtinen
v. MSI Ins. Co., 122 Wis.2d 158, 166, 361 N.W.2d 673, 677 (1985). The purpose of statutory construction is to
give effect to the legislative intent. Zimmerman
v. DHSS, 169 Wis.2d 498, 504, 485 N.W.2d 290, 292 (Ct. App. 1992). When determining legislative intent, we
first examine the language of the statute itself and will resort to extrinsic
aids only if the language is ambiguous.
Id. at 504-05, 485 N.W.2d at 292.
The
trial court's decision to grant an injunction is a discretionary one and the
scope of the injunction is also within the trial court's discretion. See State v. Seigel, 163
Wis.2d 871, 889-90, 472 N.W.2d 584, 591-92 (Ct. App. 1991). We will sustain a discretionary
determination if the trial court considered the relevant facts, applied the
proper law and used a rational mental process to reach a reasonable result. Rodak v. Rodak, 150 Wis.2d
624, 631, 442 N.W.2d 489, 492 (Ct. App. 1989).
INTERPRETATION
OF § 167.10(2) AND (3), STATS.
Definition of Fireworks
We
first address Dells Fireworks' contention that the trial court should have held
an evidentiary hearing to determine whether the fireworks described in the
complaint--which include firecrackers, bottle rockets, Artillery Shells and
Saturn Missiles--are "fireworks" as defined in § 167.10(1), Stats.
Section
167.10(1), Stats., defines
fireworks as anything "manufactured, processed or packaged for exploding,
emitting sparks or combustion which does not have another common use," and
then lists certain exclusions from this definition.[6] The trial court decided that Dells Fireworks
had conceded this in its answer because it admitted it sold "certain
fireworks" to the four individuals.
We agree with Dells Fireworks that because of the specific allegation in
the answer--that "the items recited in the plaintiff's complaint do not
constitute `fireworks' as defined by [§ 167.10(1)]"--the answer
cannot be considered a concession on this issue. However, we do not reverse the grant of summary judgment on this
ground because we conclude that Dells Fireworks has made a judicial admission
on this issue.
At
the evidentiary hearing on the motion for contempt, counsel for Wisconsin Dells
called Anthony Cornellier as a witness.
Cornellier was asked to review a document entitled "Dells
Fireworks, Inc. Order Blank Class C Fireworks"[7]
which lists sixty-six items.
Firecrackers, bottle rockets, Saturn Missiles and Artillery Shells are
all items on the order blank. He was
then asked which of the items on the order blank require a permit before they
can be purchased. He answered that all
items on the order blank require permits except sparklers, snakes and smoke
bombs, and that he would not sell these without a permit. This testimony was not qualified or
contradicted by Cornellier when his counsel examined him. The trial court made a determination based
on this undisputed testimony that the firecrackers and bottle rockets Dells
Fireworks sold to certain purchasers after the entry of the injunction were
fireworks within the meaning of the statute.
When
a party or his counsel makes a clear, deliberate and unequivocal statement of
fact, that is a judicial admission and is binding on the party. Kuzmic v. Kreutzmann, 100
Wis.2d 48, 51-52, 301 N.W.2d 266, 268 (Ct. App. 1980). Cornellier's testimony was clear, deliberate
and unequivocal. Although it was
phrased in terms of permit requirements, it was in essence a statement of fact
regarding the characteristics of the items on the order blank. The exclusions in § 167.10(1), Stats., are those types of devices that
are not regulated and therefore do not require permits. The pertinent exclusions describe devices in
terms of performance, size, weight and material. Cornellier sold all the devices on the order blank. The only reasonable interpretation of his
testimony is that the items on the order blank, with the exceptions he noted,
do not have the physical characteristics of the pertinent exceptions. We conclude that Cornellier's testimony is a
judicial admission. His testimony
forecloses asserting on appeal that there is a dispute of fact as to whether
firecrackers, bottle rockets, Saturn Missiles and Artillery Shells, all listed
on the order blank, are excluded under the definition of fireworks.
Effect of Federal License
Since
Dells Fireworks does not point to any other factual disputes, we turn to its
arguments that the trial court incorrectly interpreted the requirements under
§ 167.10(2) and (3), Stats.,
for selling fireworks. Section
167.10(2) and (3) provides in relevant part:
(2) Sale. No
person may sell or possess with intent to sell fireworks, except:
(a) To a person holding a permit under
sub. (3)(c);
(b) To a city, village or town; or
(c) For a purpose specified under sub.
(3)(b)2. to 6.
(3) Use. (a) No
person may possess or use fireworks without a user's permit from the
[municipality] ....
(b) Paragraph (a) does not apply to:
....
6. A
possessor or manufacturer of explosives in possession of a license or permit
under 18 USC 841 to 848 if the possession of the fireworks is authorized under
the license or permit.
First,
Dells Fireworks argues that it may sell fireworks to anyone because of its
federal license.[8] Dells Fireworks concedes that the federal
statute does not preempt state law in this field, see 18 U.S.C. § 848,
and that the question is what § 167.10(2) and (3), Stats., requires.
According to Dells Fireworks, because the third category of permitted
sales under § 167.10(2)(c) is for purposes specified under subsec. (3)(b)2
to 6, and because subsec. (3)(b)6 refers to a possessor of a federal license,
federal licensees can sell to anyone.
We reject this argument because it is inconsistent with the language of
the statute.
Section
167.10(3)(b), Stats., lists those
situations for which a permit is not needed to use or possess fireworks. Because of its federal permit, Dells
Fireworks may use and possess fireworks without having a user's permit from the
municipality in which it uses or possesses fireworks. It may also, because of the reference in § 167.10(2)(c) to
subsec. (3)(b)6, sell to federal licensees even though the federal licensees do
not have user's permits from the relevant municipalities. However, if the purchaser is not a federal
licensee, the purchaser must either hold a valid user's permit meeting the
requirements of § 167.10(3)(a) and (c) or must be a municipality. There are, in short, only three categories
of permissible purchasers under § 167.10(2): permit holders,
municipalities, and federal licensees.
All other sales are prohibited.[9] Nowhere is there an exemption from this requirement because the seller holds
a federal license.
Validity of Permits
Dells Fireworks also
argues that the four individuals to whom it sold fireworks each had a valid
user's permit because they were members in the WFA, which had a valid user's
permit for a number of municipalities.
It is undisputed that these four individuals did not have permits issued
by the City of Wisconsin Dells, the municipality in which they purchased the
fireworks and possessed the fireworks after purchase. It is also undisputed that WFA does hold valid permits from a
number of municipalities, but not from Wisconsin Dells.
According
to Dells Fireworks, because user permits may be issued to "[a] group of
resident or nonresident individuals" under § 167.10(3)(c)6, Stats., every member of the group--in
this case, WFA--is a permit holder by virtue of WFA's permit. We agree with the trial court's analysis and
reject this interpretation as inconsistent with the language of the
statute.
Under
§ 167.10(3)(c)6, Stats., the
permit is issued to a group, not to the individuals that make up the
group. Therefore, it is the group, WFA,
which holds the permit, not the members of the WFA. WFA, according to its membership forms, is a non-profit
corporation. Since, as a corporation, WFA
can only act through individuals, see City of Kiel v. Frank Shoe
Mfg. Co., 245 Wis. 292, 297, 14 N.W.2d 164, 166 (1944), WFA may
authorize individuals to act on its behalf in purchasing fireworks. However, the membership form does not show
that the four individuals are authorized by WFA to act on its behalf in
purchasing fireworks; and there is no other evidence in the record that does
show that.
A
statute must be construed to promote its purpose and objective. City of Appleton v. Brunschweiler,
52 Wis.2d 303, 306, 190 N.W.2d 545, 547 (1971). Section 167.10, Stats.,
provides for strict regulation of the sale and use of fireworks. Apart from federal licensees and
municipalities, sales may be made only to permit holders. Under § 167.10(3)(c) there are only
seven categories of permit holders--public authority, fair association, amusement
park, park board, civic organization, group of resident or nonresident
individuals, and agricultural producer for the protection of crops. Except for an agricultural producer, user
permits may not be issued to individuals.
These requirements give the issuing municipality the ability to
carefully control the use and possession of fireworks within its
boundaries. If any individual who pays
two dollars can obtain a permit without the municipality even knowing about it,
there is little point to any of these sale and use requirements. It is clear from the WFA membership form and
the undisputed circumstances of the membership purchases, that WFA is not
exercising any control over the purchase or use of fireworks by its
members.
We
conclude that Wisconsin Dells was entitled to judgment that the sales to the
four individuals violated § 167.10(2) and (3), Stats., because the purchasers did not have valid user
permits.
Propriety of Injunction
We
hold that the injunction was a proper exercise of the trial court's
discretion. The court could reasonably
conclude from the undisputed evidence that Dells Fireworks would continue the
unlawful sales unless enjoined.
The
specific terms of the injunction were also a proper exercise of the court's
discretion. The injunction prohibited sales to persons that did not
have valid permits issued pursuant to § 167.10(3), Stats., (or pursuant to a local ordinance in conformity
therewith), unless the purchaser was in one of the other permissible
categories, which the injunction specified.
The injunction also prohibited the delivery or possession of fireworks
within Wisconsin Dells to anyone that did not have a permit issued by Wisconsin
Dells, unless that person was in one of the other permissible categories,
specified in the injunction. Where
sales or deliveries are permitted to a person or an individual under the
injunction, the sales or deliveries must be either to that person or
individual, or to an individual acting as an authorized agent within the scope
of the agency. The term
"person" is defined in the injunction to include both municipalities
and the definition of person under 18 U.S.C. § 841(a)--"any individual,
corporation, company, association, firm, partnership, society, or joint stock
company." The terms of the
injunction are an accurate and clear statement of the law as applied to the
facts of this case.
Dells
Fireworks contends that even if the injunction was proper when entered, the
trial court should have "abandoned it" when the branch presiding over
the forfeiture action against Diane Cornellier dismissed that action. According to Dells Fireworks, that court's
decision that the federal license exempted her from compliance with the statute
is the "law of the case" in this action.
The
law of the case doctrine has no application in this context. The doctrine is typically applied to require
a trial court to follow all legal rulings made by the appellate court in
subsequent proceedings before the trial court in the same case. Univest Corp. v. General Split Corp.,
148 Wis.2d 29, 38-39, 435 N.W.2d 234, 238 (1989). In some cases cited by Dells Fireworks, the doctrine has also
been applied to prevent a party from contesting a ruling made earlier by the
trial court or agency in the same case.
See AFSCME Local Union No. 360 & 3148 v. WERC,
148 Wis.2d 392, 396, 434 N.W.2d 850, 851 (Ct. App. 1988); Roellig v.
Roellig, 146 Wis.2d 652, 659, 431 N.W.2d 759, 762 (Ct. App. 1988). However, the doctrine has no application
where, as here, two cases have proceeded separately, each before a different
trial court. The trial court in this
action correctly ruled that it was not bound by the ruling of the other trial
court.
CONTEMPT
Dells
Fireworks challenges the trial court's finding of contempt on the ground that
it did comply with the trial court's explanation of the injunction and the
explanation of Wisconsin Dells' counsel as reported in a newspaper. Dells Fireworks also contends that the trial
court improperly found it in contempt for acts that took place outside the city
limits of Wisconsin Dells. Finally,
Dells Fireworks challenges certain of the conditions imposed by the court as
sanctions.
We
do not set aside the trial court's findings of fact unless they are clearly
erroneous. Section 805.17(2), Stats.
However, to the extent the determination of contempt involves an
interpretation of the injunction, that is a question of law that we review de
novo. See Levy v. Levy,
130 Wis.2d 523, 528-29, 388 N.W.2d 170, 172-73 (1986) (interpretation of a
divorce judgment presents a question of law).
A court may impose remedial sanctions for the purpose of terminating a
continuing violation of a court order.
Sections 785.01(3) and 785.02, Stats. A trial court's use of its contempt power is
reviewed to determine if the trial court properly exercised its
discretion. State ex rel. N.A. v.
G.S., 156 Wis.2d 338, 341, 456 N.W.2d 867, 868 (Ct. App. 1990).
At
the contempt hearing, two individuals testified that after the entry of the
injunction, Dells Fireworks sold them certain fireworks after they purchased
WFA memberships from Dells Fireworks.
In each case, after the purchaser paid for the fireworks at the Dells
Fireworks' place of business, an employee of Dells Fireworks arranged to and
did deliver the fireworks to the purchaser outside of the city limits.
The
WFA membership forms signed by these two individuals differed from those
attached to the complaint. Instead of
stating that "membership specifically allows possession of the fireworks
while transporting them from the point of sale to the locations listed on this
permit," these forms stated:
"You are authorized to possess these fireworks as an agent of the
Wisconsin Fireworks Association and solely for purposes of delivering them to a
licensed site so that they may be discharged as part of our group
celebration." The modified forms
also did not contain the provision denying liability on the part of WFA for any
injury.
The
trial court found that these two sales were not to WFA but to the individuals,
and that the use of these WFA membership forms by Dells Fireworks was not in
good faith, was intentional, and was for the purpose of avoiding the
requirements of the law and the injunction.
The
trial court found that Dells Fireworks had violated the injunction by a sale to
another individual, Chad Long. Long
testified that he obtained a blank permit from Dells Fireworks, as he had done
on at least one prior occasion when Diane Cornellier explained that he could
buy fireworks if a town official signed the permit. As filled in by Long, the permit gives him permission to use
Class C fireworks in the Town of Lyndon or to protect crops from predatory animals. Long had the permit signed by the Lyndon
town chairman. He took the signed
permit back to Dells Fireworks' place of business, presented it to Diane
Cornellier and paid for certain fireworks.
The fireworks were delivered to him outside the city limits.
The
trial court found that this permit was defective on its face. As an individual, Long obviously could not
belong to any category of permit holder except that of an agricultural
producer. This is true even under Dells
Fireworks' interpretation of the statute because he did not have a membership
in the WFA. The court implicitly found
that Diane Cornellier knew that Long was not an agricultural producer
purchasing fireworks to protect crops.
This finding is supported by the record and is not clearly
erroneous. The trial court found that
this transaction demonstrated, if not an intentional violation of the
injunction, then a reckless disregard of the injunction and the law.
The
trial court imposed a penalty of $400 for each of the two violations that
involved WFA members and $200 for the violation involving Long, pursuant to
§ 167.10(9)(b), Stats.[10] The court ordered that the fireworks that
were held for sale and sold in violation of the injunction be seized pursuant
to § 167.10(8). The court also ordered
that all sales made to an organization or to a group of resident or
non-resident individuals be for an amount not less than $250 in the form of a
draft or a check drawn on the account of the organization and that delivery be
made to the business office of the organization.
Dells
Fireworks claims that, in granting the injunction, the trial court stated that
it could make sales as long as the fireworks were delivered outside the city
limits; and that the attorney for the city said the same thing, as reported in
a local newspaper. According to Dells
Fireworks, this is a modification of the injunction like that in State v.
O'Dell, 193 Wis.2d 333, 532 N.W.2d 741 (1995) (oral statements made by
court, after entry of a written injunction, that modified the written terms but
were never reduced to writing, constituted a modification of the
injunction).
There
is no merit to Dells Fireworks' contention.
Dells Fireworks refers to only a portion of the comments the trial court
made in explaining the injunction it was about to enter. A complete reading of the court's comments
leaves no doubt that Dells Fireworks could not sell fireworks to a person who
did not have a valid permit (or was exempt from the permit requirement) regardless
of where delivery or possession took place.
And that is exactly what the injunction says.
The
same is true of the comments attributed to Wisconsin Dells' counsel.[11] In parts of the article not cited by Dells
Fireworks, the city's counsel is reported to say that the injunction
differentiates between sale and delivery and that the injunction permits
fireworks to be sold only to persons with a permit; he then describes the
requirements for permits.
There
is also no merit to Dells Fireworks' contention that the trial court is
erroneously enforcing the injunction "extraterritorially" in finding
a violation of the injunction because of the sale to Chad Long. This violation is based on the sale to Long
of fireworks when Dells Fireworks knew or should have known the permit he
presented was invalid. It is not based
on Long's acts of bringing the fireworks back into the city, as Dells Fireworks
suggests. We agree with the trial
court's legal conclusion that although Long did not receive possession within
the city limits, the sale was made within the city limits. Dells Fireworks cites no authority for a
contrary position.
Dells
Fireworks' final challenge is to the requirements imposed on sales to
organizations having permits. These
sales must involve at least $250, with payment on drafts or checks containing
the organization's name, and delivery must be to the organization's business
office. These remedial sanctions for
contempt are a proper exercise of the trial court's discretion. The issue of WFA members' authority to
purchase fireworks was fully argued on the summary judgment motion and the
trial court explained in detail its reasoning on this issue in its oral
decision granting summary judgment. The
evidence at the contempt hearing supports the court's finding that Dells
Fireworks intentionally violated the injunction by selling to individuals who
purchased memberships by means of the modified forms. The requirements the court imposed for sales to organizations are
designed to prevent continuing manipulation of membership in WFA or other
organizations. The trial court could
reasonably conclude that absent such requirements, Dells Fireworks would
continue to devise methods for selling to individuals who do not have valid
permits and are not authorized agents of an organization that does.
By
the Court.—Judgment and order
affirmed.
[1] Dells Fireworks, Inc. and the Cornelliers
filed a notice of appeal from both the summary judgment and the oral contempt
finding. We dismissed that part of the
appeal taken from the oral contempt finding because an appeal can be taken from
a finding of contempt only from a written order or judgment. See Ramsthal Advertising Agency
v. Energy Miser, Inc., 90 Wis.2d 74, 75-76, 279 N.W.2d 491, 492 (Ct.
App. 1979). Later, when the trial court
reduced its oral contempt finding to a written order, Dells Fireworks, Inc. and
the Cornelliers filed a notice of appeal from the trial court's written
contempt order. We granted a request to
consolidate the appeals. In addition,
because the second appeal is a one-judge appeal under § 752.31(2), Stats., we converted it to a
three-judge panel on our own motion.
[2] Section 167.10(2) and (3), Stats., provides in part:
(2) Sale. No person may sell or possess
with intent to sell fireworks, except:
(a) To a
person holding a permit under sub. (3)(c);
(b) To a city,
village or town; or
(c) For a
purpose specified under sub. (3)(b)2. to 6.
(3) Use. (a) No person may possess or
use fireworks without a user's permit from the mayor of the city, president of
the village or chairperson of the town in which the possession or use is to
occur or from an official or employe of that municipality designated by the
mayor, president or chairperson....
(b) Paragraph
(a) does not apply to:
1. The city, village or town, but municipal
fire and law enforcement officials shall be notified of the proposed use of
fireworks at least 2 days in advance.
2. The possession or use of explosives in
accordance with rules or general orders of the department of industry, labor
and human relations.
3. The disposal of hazardous substances in
accordance with rules adopted by the department of natural resources.
4. The possession or use of explosive or
combustible materials in any manufacturing process.
5. The possession or use of explosive or
combustible materials in connection with classes conducted by educational
institutions.
6. A possessor or manufacturer of explosives in
possession of a license or permit under 18 USC 841 to 848 if the possession of
the fireworks is authorized under the license or permit.
(c) A permit
under this subsection may be issued only to the following:
1. A public authority.
2. A fair association.
3. An amusement park.
4. A park board.
5. A civic organization.
6. A group of resident or nonresident
individuals.
7. An agricultural producer for the protection
of crops from predatory birds or animals.
Section
167.10(5), Stats., permits
municipalities to adopt ordinances regulating fireworks; the ordinances may be
more restrictive than the statute but not less restrictive. The record does not contain a text of the
ordinance, but appellants tell us in their brief that the ordinance is exactly
the same as § 167.10.
[3] 18 U.S.C. §§ 841-848 regulate the interstate
importing, manufacturing, distributing and storing of explosive materials and
require a license to engage in these activities.
[4] Anthony Cornellier is alleged to have made
the sale to one of the individuals and Diane Cornellier is alleged to have made
the other three sales.
[5] Section 167.10(1), Stats., provides in pertinent part:
Definition. In this section, "fireworks" means anything
manufactured, processed or packaged for exploding, emitting sparks or
combustion which does not have another common use, but does not include any of
the following:
....
(e) A cap
containing not more than one‑quarter grain of explosive mixture, if the
cap is used or possessed or sold for use in a device which prevents direct
bodily contact with a cap when it is in place for explosion.
(f) A toy
snake which contains no mercury.
....
(i) A sparkler
on a wire or wood stick not exceeding 36 inches in length or 0.25 inch in
outside diameter which does not contain magnesium, chlorate or perchlorate.
(j) A device
designed to spray out paper confetti or streamers and which contains less than
one‑quarter grain of explosive mixture.
(k) A device
designed to produce an audible sound but not explode, spark, move or emit an
external flame after ignition and which does not exceed 3 grams in total
weight.
(l) A device
that emits smoke with no external flame and does not leave the ground.
(m) A
cylindrical fountain not exceeding 100 grams in total weight with an inside
tube diameter not exceeding 0.75 inch, designed to sit on the ground and emit
only sparks and smoke.
(n) A cone
fountain not exceeding 75 grams in total weight, designed to sit on the ground
and emit only sparks and smoke.
[7] Class C is a classification of fireworks
designated by the department of transportation. This classification is not relevant to our decision.
[9] Section 167.10(4), Stats., does permit certain other sales by wholesalers. This provision is not at issue on this
appeal.
[10] Section 167.10(9)(b), Stats., provides:
A person who
violates sub. (2), (3) or (6) or an ordinance adopted under sub. (5) shall
forfeit not more than $1,000.
[11] The trial court, over objection, accepted the
newspaper article into evidence "for whatever probative value it may
have," but did not refer to it in its oral decision. Because of our conclusion that the comments
attributed to Wisconsin Dells' counsel accurately describe the injunction, we
need not decide whether the article could properly be considered in deciding whether
Dells Fireworks violated the injunction.