State v. Windy City Fireworks, Inc. , 1992 Ind. App. LEXIS 1461 ( 1992 )

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 IND.CODE 22-11-14-8. All fireworks excluded from the list may not be sold or offered to be sold at retail. Windy City does not dispute this.

What is in dispute, however, is the effect of IND.CODE 22-11-14-4(a)(1)(B), which reads as follows:

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 IND. CODE 22-11-14-8 list to anyone, so long as the buyer pledges to ship the goods out of state within five days of the sale.

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." IND.CODE 22-11-14-1. A "wholesaler" is "a person who purchases fireworks for resale to retailers." Id. A "retailer," in turn, "means a person who purchases fireworks for resale to consumers." Id. Thus, the entities are defined in terms of to whom they will sell. A wholesaler sells to retailers, and a retailer sells to consumers. By definition, a wholesaler does not sell to consumers, because a wholesaler is "a person who purchases fireworks for resale to retailers," not to consumers.

Once this is understood, the resolution of the issue in dispute here becomes apparent. IND.CODE 22-11-14-4(a)(1)(B) does not permit a wholesaler to sell to any buyer, so long as the buyer pledges to remove the fireworks from Indiana promptly. Instead, the section contemplates wholesalers' "resale to retailers." - Accordingly, under IND.CODE 22-11-14-4(a)(1)(B), a wholesaler may sell fireworks excluded from the IND.CODE 22-11-14-8 list only to retailers and then only if the retailer pledges to ship the goods directly out of state within five days of the sale. Rather than being a very broad provision, as Windy City submits, the subsection is instead very narrow and precise in terms of to whom a wholesaler may sell the otherwise illegal fireworks.

Any argument employing the definition of "resident wholesaler" ⁶ found in IND. CODE 22-11-14-4(b) must inevitably confront this same reasoning. Our legislature has made it clear that a "wholesaler" is someone who purchases fireworks for resale to retailers, not to consumers. For the same reason, any argument relying on IND.CODE 22-11-14-10(b), which requires wholesalers to post a particular notice in their place of business, is equally unavailing.

Given our legislature's intent to protect our citizens from the more dangerous fire: works, 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.

6 . A "resident wholesaler" 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 subsection (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.

IND.CODE 22-11-14-4(b).