Opinion
No. CV08-4038297
October 22, 2008
MEMORANDUM OF DECISION
The plaintiff, B.J. Alan Company, CT, Inc., filed an application for an ex parte temporary injunction on June 30, 2008, against the defendants, State of Connecticut, the department of public safety and Commissioner John A. Danaher, III. The show cause hearing on the application for temporary injunction was scheduled before this court on July 1, 2008, during which the court accepted a stipulation of facts as well as additional evidence proffered by the parties. The court ordered briefs to be filed by the end of the day on July 2, 2008. Following oral argument on July 3, 2008, the court denied the application for temporary injunction and indicated it would file a written decision. This memorandum of decision serves to elaborate on the court's ruling of July 3, 2008.
Before this court, the parties stipulated to the following facts. The plaintiff is an itinerant vendor licensed by the department of consumer protection. On June 27, 2008, the defendants seized without a warrant various fireworks, described as "fountains" as defined by General Statutes § 29-356(3) and as identified in paragraph five (5) of the plaintiff's complaint. The defendants claim that the seized products violate General Statutes § 29-357 in that they contain in excess of five (5) grams of chlorate or perchlorate salts and/or they are in excess of 200 grams of total pyrotechnic composition.
In addition to the above facts, the court finds the following additional facts. The plaintiff was aware of the local fire marshal's scheduled inspection on June 27, 2008 of its Norwich retail location, which was a precondition to securing a permit to open the following day. Pursuant to its application for a permit, the plaintiff provided to local fire marshals chemical composition data sheets, which were originally compiled by and given to them by the manufacturer. As a result of their review of these data sheets, the defendants accompanied the fire marshal to the Norwich location and ultimately seized approximately $7,000 worth of fountains whose chemical composition were described by the data sheets to be in violation of § 29-357.
On that same evening at about 7:00 p.m., the defendants then arrived at the plaintiff's Berlin location, which was still open to the public. Based again on the chemical composition data sheets provided by the plaintiff, the defendants seized without a warrant $140,000 worth of fountains whose chemical composition indicated they were in violation of the above state law.
On July 1, 2008, when this court was scheduled to begin its hearing on the application for temporary injunction, the parties informed the court that a search and seizure warrant was being presented to Judge D'Addabbo at the Superior Court, judicial district of New Britain in order to allow for forensic testing of the products seized at the Berlin location. The court, D'Addabbo, J., signed the warrant, having found probable cause to believe that the products constitute evidence of a violation of § 29-357(a), a class A misdemeanor. From this court's review of the warrant, the entire inventory of seized items from the Berlin location is subject to this order, although presumably only a representative sample of each of the various products may be necessary for testing.
I JURISDICTION
A preliminary issue before this court is the question of whether it has jurisdiction over the products seized from the New Britain location, an issue which the defendants raise in light of Judge D'Addabbo's order.
In support of this claim, defendant cites In re Application of Joseph S. Libero, Superior Court, judicial district of New Haven, Docket No. 342873 (January 20, 1993, Hodgson, J.) ( 8 Conn. L. Rptr. 205). In Libero, Judge Hodgson denied an application for a writ of habeas corpus because a judge of coordinate jurisdiction in family court had found Mr. Libero in contempt and ordered him incarcerated. Id. Our Supreme Court has noted that "[c]ollateral attacks on judgments of courts of coordinate jurisdiction are disfavored in this state." Santora v. Miklus, 199 Conn. 179, 188, 506 A.2d 549 (1986). As the court further observed, "[i]n the interests of finality and judicial economy, challenges to a court order should be brought to the court that issued the order or to an appellate court of proper jurisdiction." Id., 188-89.
As the court in Libero noted, this court also finds that it is a court of jurisdiction coordinate to, and not superior to, the jurisdiction of the court who issued the warrant. Principles of comity require this court to exercise restraint before modifying or affecting what is otherwise a facially valid order of another court. Santora v. Miklus, supra, 199 Conn. 189. Even if, however, this court could properly exercise jurisdiction over the products seized in Berlin, the court finds that the plaintiff has failed to establish its burden with respect its application for injunction as to the seizure of the products in both Norwich and Berlin.
II INJUNCTION STANDARD
The standard for issuing a temporary injunction is well settled. "The principal purpose for a temporary injunction is to preserve the status quo until the rights of the parties can be finally determined after a hearing on the merits." (Internal quotation marks omitted.) Clinton v. Middlesex Mutual Assurance Co., 37 Conn.App. 269, 270, 655 A.2d 814 (1995). There are four factors that must be determined before granting an injunction: (1) the plaintiff will suffer irreparable injury without the injunction; (2) there is a lack of an adequate remedy at law; (3) the plaintiff is likely to succeed on the merits; and (4) a balancing of the equities favor the issuance of the injunction. Waterbury Teachers Ass'n. v. Freedom of Information Commission, 230 Conn. 441, 446, 645 A.2d 978 (1994). The court considers each of these elements in turn.
III IRREPARABLE HARM AND ADEQUATE REMEDY AT LAW
The plaintiff argues that the deprivation of constitutional rights is per se irreparable injury. In support of its claim, the plaintiff relies on the plurality decision in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and two Superior Court decisions in Cologne v. Westfarms Associates, 37 Conn.Sup. 90, 442 A.2d 471 (1982), and Byars v. Waterbury, Superior Court, judicial district of Waterbury, Docket No. CV 99 0152489 (June 4, 1999, Caruso, J.) ( 24 Conn. L. Rptr. 601). Elrod, Cologne and Byars are distinguishable from the present matter in that they all largely dealt with alleged deprivations of first amendment rights, as opposed to the seizure of private property. The plaintiff alleges no first amendment violations and this court declines to extend the per se rule beyond the first amendment realm.
The plaintiff also claims that its reputation will be harmed irreparably if injunctive relief is not granted. The irreparable harm element of the injunction standard, however, is inexorably tied to the adequate remedy at law inquiry. "Where a suit for money damages could be maintained there is an adequate remedy at law and no irreparable injury." Hastings v. Scoville, Superior Court, judicial district of Tolland, Docket No. CV 04 4000357 (October 27, 2004, Scholl, J.). Moreover, past injury alone is insufficient; in order to obtain an injunction, plaintiff must show present continuing injury or the likelihood of future injury. Id. The court also notes that "as a general matter, a plaintiff seeking to enjoin a governmental agency must demonstrate that it has no access to the ordinary remedy of monetary relief." Alter Associates, LLC v. Lantz, 90 Conn.App. 15, 22, 876 A.2d 1204 (2005). In this case, the plaintiff's verified complaint states that the seized fireworks are valued at $118,694.11. In addition, the court is simply not convinced that the plaintiff will suffer irreparable harm to its reputation and received no persuasive evidence that this was the case. In any event, while it is apparent that the timing of the seizure occurred when the plaintiff's business is most profitable, the plaintiff's losses are nevertheless compensable with money damages.
Furthermore, General Statutes § 29-362 mandates that a post-deprivation hearing take place within six to twelve days after fireworks have been seized. Section 29-362 states that:
[t]he State Fire Marshal or a local fire marshal shall seize, take, store . . . all stocks of fireworks or combustibles offered or exposed for sale . . . in violation of sections 29-356 to 29-366, inclusive. When any fireworks have been seized, the superior court having jurisdiction . . . shall cause to be left at the place where such fireworks were seized . . . a summons notifying him or her . . . to appear before such court, at a place and time named in such notice, which tine shall not be less that six nor more than twelve days after the posting and service thereof, then and there to show cause, if any, why such fireworks should not be adjudged a nuisance . . .
This post-deprivation hearing, together with the compensable nature of the plaintiff's alleged injuries, provides an adequate remedy at law, and therefore no irreparable harm has been shown. The court now turns to the likelihood of success of the plaintiff's claims of legislative error, preemption and the constitutional challenges to § 29-362.
IV LIKELIHOOD OF SUCCESS ON MERITS A Legislative Error
The plaintiff claims that the five-gram perchlorate limit in General Statutes § 29-357 as applied to fountains was legislative error, and that pursuant to our Supreme Court's ruling in State v. Jenkins, 198 Conn. 671, 504 A.2d 1053 (1986), this court can and should correct the mistake. Section 29-357 reads in relevant part:
A person who is sixteen years of age or older may offer for sale, expose for sale, sell at retail, purchase, use or possess with intent to sell or use sparklers or fountains of not more than one hundred grams of pyrotechnic mixture per item, which are nonexplosive and nonaerial, provided . . . (2) such sparklers and fountains containing any chlorate or perchlorate salts do not exceed five grams of composition per item . . .
(Emphasis added). Specifically, the plaintiff claims that the five-gram limit was copied from American Pyrotechnic Association Standard 87-1 (incorporated into Title 49 of the Code of Federal Regulations), which applied to sparklers, and is therefore improperly applied to fountains in the Connecticut statute. The defendants argue that there is no record to support this claim of error, and that applying a safety standard to two pyrotechnic devices is a rational policy choice by our legislature.
In Jenkins, the defendant was convicted of kidnapping in the first degree and burglary in the second degree. Id., 672. The defendant urged the trial court to consider suspending the otherwise ten-year minimum sentence — despite the penal code's prohibition on suspension of sentences for class A felonies — because the language of § 53a-92a, kidnapping in the first degree with a firearm, permitted the suspension of a sentence after one year. Id., 673. The defendant argued that these inconsistent statutes should be read together. Id. The Jenkins court noted that this discrepancy linked a lesser penalty to "concededly a crime more serious than that of kidnapping in the first degree." Id., 676. To remedy this, the court ruled that until the legislature corrects the error, the one-year suspension provision of § 53a-92a(b) was to govern all prosecutions for kidnapping in the first degree. Id., 680.
Given the unusual facts in Jenkins, this court finds it wholly inapplicable to the matter presently before it. Moreover, the claim of legislative error is especially unpersuasive to the extent that the legislative history indicates that the plaintiff was one of the entities on record in support of House Bill No. 5123, whose specific purpose was to clarify the definition of a legal sparkler and a legal fountain. This court rejects what is ultimately the plaintiff's call for this court to violate the doctrine of separation of powers by re-writing a statutory provision. State v. DeJesus, 288 Conn. 418, 456 n. 25, 953 A.2d 45 (2008) ("this court's authority to modify or overrule a statute is limited by the separation of powers provisions of the state and federal constitutions").
The plaintiff in fact submitted a letter in support of the bill, which stated in relevant part: We write in support of [House Bill No.] 5123[,] An Act Concerning Sparklers . . . The sparklers industry, members of the Office of the State Fire Marshal and Department of Public Safety have worked in conjunction to draft the best current language to provide the necessary guidance for law enforcement officials around the state. Conn. Joint Standing Committee Hearings, Public Safety and Security, Pt. 2, 2006 Sess., p. 475.
B Preemption
The plaintiff also claims that Title 49 of the Code of Federal Regulations, which incorporates by reference standard 87-1 of the American Pyrotechnic Association, preempts Connecticut's statutory scheme regulating sparklers and fountains. The defendant argues that Title 49 — promulgated by the United States Department of Transportation — regulates the interstate transportation of hazardous materials (including fireworks) and not their sale and use within a state. The United States Supreme Court has determined that federal law preempts state law if (1) Congress explicitly defines its intent to supplant state law, (2) absent such specific language it is clear that Congress regulated an area so pervasively as to leave no room for state regulation, or (3) state law actually conflicts with federal law such that a private party cannot comply with both statutory schemes. English v. General Electric Co., 496 U.S. 72, 78-79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990). This court is not persuaded that any of these three circumstances are satisfied and finds that the federal regulations in question and § 29-357 can coexist.
Michigan has a fireworks law similar to Connecticut that prohibits the sale and use of fireworks with certain compositions, while permitting certain fountains and sparklers. Mich. Comp. Laws § 750.243a. In Stajos v. Lansing, 221 Mich.App. 223, 235-36, 561 N.W.2d 116 (1997), cert. denied, 459 Mich. 851, 584 N.W.2d 588 (1998), cert. denied, 526 U.S. 1065, 119 S.Ct. 1455, 143 L.Ed.2d 542 (1999), the court held that § 750.243a was not preempted by federal regulations because the regulations did not address the sale or use of fireworks within a state and so there was no conflict. Similarly, in Pickelman v. Michigan State Police, 102 F.Sup.2d 765, 769 (E.D.Mich. 2000), aff'd, 31 Fed.Appx. 295 (6th Cir. 2002), cert. denied, 537 U.S. 1109, 123 S.Ct. 853, 154 L.Ed.2d 781 (2003), the district court held that the Michigan law was not preempted because the federal regulations dealt with packaging and transportation of fireworks and not sale or use. This court agrees with these holdings and finds that the United States Department of Transportation regulations at issue do not preempt § 29-357, which explicitly governs the sale, use and possession of certain sparklers and fountains.
C Unconstitutionality of Law/Warrantless Search
The plaintiff also claims that General Statutes § 29-362 is unconstitutional because it authorizes warrantless searches in violation of the constitutions of the United States and Connecticut.
The United States Supreme Court has long held that fourth amendment protection from unreasonable searches and seizures extends to commercial premises in addition to private homes. See v. Seattle, 387 U.S. 541, 546, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967). "An expectation of privacy in commercial premises, however, is different from, and indeed less than, a similar expectation in an individual's home." New York v. Burger, 482 U.S. 691, 700, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987). "This expectation is particularly attenuated in commercial property employed in 'closely regulated' industries." Id. "Certain industries have such a history of government oversight that no reasonable expectation of privacy . . . could exist for a proprietor over the stock of such an enterprise." (Internal citation omitted.) Marshall v. Barlow's, Inc., 436 U.S. 307, 313, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978); see also Katz v. United States, 389 U.S. 347, 351-52, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). There is no dispute that the fireworks industry is heavily regulated here in Connecticut and as such, the plaintiff has a significantly reduced expectation of privacy. General Statutes §§ 29-356 though 29-366.
As a result, businesses like B.J. Alan Company can be subjected to warrantless inspections if three criteria are met: (1) there must be a substantial government interest that justifies the regulatory scheme; (2) the warrantless inspection must be necessary to promote the regulatory scheme; and (3) the statute must advise the owner of the business that the search is being made pursuant to the law and it must limit the discretion of the officers. New York v. Burger, supra, 482 U.S. 702-03.
Connecticut's regulatory scheme satisfies the three Burger criteria. First, the state has a substantial interest in regulating the fireworks industry because of public safety concerns inherent with the use of fireworks. Clearly within its regulatory mandate, the state has chosen to permit only fireworks with certain specifications. Second, given the substantial government interest in public safety, warrantless inspections are necessary to the regulatory scheme. "[I]f inspection is to be effective and serve as a credible deterrent, unannounced, even frequent, inspections are essential." United States v. Biswell, 406 U.S. 311, 316, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972). A warrant requirement could "easily frustrate inspection," as well as the obvious goal of public safety, if these products are sold to consumers. Id. Finally, the regulatory scheme adequately puts fireworks vendors on notice that non-compliant fireworks can and will be seized upon inspection. General Statutes § 29-362. The court therefore does not find the statute in question to be unconstitutional.
Furthermore, it is well settled that there are other limited exceptions to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), quoting Katz v. United States, supra, 389 U.S. 357. One such exception is a search conducted with consent. Id. Here, it is undisputed that the plaintiff's Norwich location had an appointment on June 27, 2008, for an inspection with the fire marshal before it was to open their business that day. The court finds that the search of the Norwich location was done with the plaintiff's consent and was not unlawful.
The plaintiff also claims that the post-deprivation hearing as mandated by § 29-362 is inadequate to protect its due process rights. In North American Cold Storage Co. v. Chicago, 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed. 195 (1908), the court upheld the seizure of defective meat without a pre-seizure hearing. Similarly, in Ewing v. Mytinger Casselberry, Inc., 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (1950), the court allowed the seizure of mislabeled drugs without a pre-seizure hearing. "In both of these cases, the [c]ourt considered that need to protect the public health or safety outweighed the possibility of erroneous deprivation, and that providing the owner an action at law to recover damages was therefore all the process required by the due process clause." Siegel v. Sonquist, 554 F.Sup. 1217, 1218 (E.D.Wis. 1983). Like the present case, Siegel involved the seizure of fireworks, and the district court found the public safety concern to outweigh the risk of erroneous deprivation. Id. The court agrees with the Siegel court's assessment and finds that due process does not require anything more than the process in place in Connecticut.
V BALANCING EQUITIES
An injunction will only be granted if it is shown that the plaintiff's actual and substantial damages would be greatly disproportionate to the injury caused to the defendant. Hartford Electric Light Co. v. Levitz, 173 Conn. 15, 21-22, 376 A.2d 381 (1977). In the present case, the court finds that the state's interest in protecting the public from illegal fireworks far outweighs the injuries complained of by the plaintiff, and that therefore, in balancing of the equities, the court finds that a temporary injunction should not issue.
For the above stated reasons, the court denies the plaintiff's application for temporary injunction.
It is SO ORDERED.