This is just an example of the lengths that the fire and smoke sellers will go to get the ability to "legally" sell a firework. What do you think was a stake for TNT fireworks in one ban in one state on one firework? Clearly a very profitable Chinese made firework that clearly must be a top seller due to its ability to annoy (via noise) and to be modified into an illegal firework that shoots in the air. That popularity and money must have been the reason TNT took the issue all the way to the Conn. Sup. Court. Looks to me like most states really dont have a chance against this kind of power. This reminds me of how the tobacco companies react to bans and advertising laws. They run to court as fast as possible. Cigarettes are on the run. Lets hope with anti-pollution laws and global warming that "personal fireworks" (those you use at home) will eventually loose favor with a more educated consumer. Once Hummers start to loose favor I think the tide may start to turn on the fireworks sellers.
Court Silences Firework
Justices: 'Piccolo' Plays Too Dangerous A Tune
By LYNNE TUOHY | Courant Staff Writer
January 12, 2008
The state Supreme Court often decides weighty matters, such as the constitutionality of the death penalty or whether gay and lesbian couples have a right to marry.
Sometimes its rulings involve more fanciful issues, such as Friday's determination of whether the "Piccolo Pete" firework is a harmless sparkler or a pyrotechnic firecracker banned by state law.
Suffice to say, you can no longer buy a Piccolo Pete in Connecticut.
Prior to June of 2000, all fireworks were illegal in Connecticut. Effective June 1 of that year, the legislature carved out an exception for sparklers and "fountains" that spewed sparks or smoke, but were considered nonexplosive. Enter Piccolo Pete, marketed by American Promotional Events, doing business as TNT Fireworks.
Five years later, however, the state fire marshal and state police personnel scrutinized Piccolo Pete and concluded that it is a potentially unsafe pyrotechnic that emits a 4- to 5-inch flame that lasts up to six seconds. It also produces some sparks, some smoke and a loud whistle.
Attorney General Richard Blumenthal issued a cease and desist order in 2005, barring TNT from selling the Piccolo Pete. TNT complied, but also appealed to the trial court, which determined that Piccolo Pete was a "fountain" firework and exempt from the state ban. The court told Blumenthal that he could not prevent TNT from marketing Piccolo Pete.
The trial involved a clash of the experts.
Wayne Maheu, head of the state Department of Public Safety's division of fire, emergency and building services, testified that Piccolo Pete emits some smoke and sparks, but that its "dominant feature" is its flame.
John Conkling, a chemist and frequent expert witness for the fireworks industry, countered that Piccolo Pete's most striking feature is its whistle, and that all sparklers and fountains involve some flame. He said that the firework meets the criteria for being exempt from the ban —that it is nonexplosive, non-aerial and contains 100 grams or less of pyrotechnic material.
The trial court concluded that because Piccolo Pete emits some smoke, it falls within the definition of "fountain" fireworks that are exempt from the ban. Fountain fireworks, by law, must emit a "shower" of sparks or smoke as their dominant feature.
The state Supreme Court, in its unanimous decision released Friday, reversed the trial court and doomed Piccolo Pete to the status of a banned firework. It did so through statutory analysis, while acknowledging that a "shower of smoke is not a commonly used term," Justice Richard N. Palmer wrote.
"In view of the fact that fireworks are widely banned and otherwise intensively regulated under our statutory scheme, it would be contrary to that scheme to construe it as permitting a dangerous and otherwise prohibited pyrotechnic effect — in the present case, a four to five inch exposed flame that lasts up to six seconds — merely because the pyrotechnic effect is produced by a firework that also emits a shower of colored sparks or smoke," Palmer wrote.
The high court could have remanded the case to the trial court to determine whether the smoke emitted by Piccolo Pete satisfies the "shower of smoke" standard required to be exempt from the ban. Instead, the justices watched the same video demonstration "of an ignited Piccolo Pete" that the trial court did and determined that no one reasonably could conclude that the smoke emitted by the firework constituted "a shower of smoke."
Contact Lynne Tuohy at ltuohy@courant.com.
AMERICAN PROMOTIONAL EVENTS, INC. v.
RICHARD BLUMENTHAL ET AL.
(SC 17868)
Borden, Norcott, Katz, Palmer and Vertefeuille, Js.*
Argued May 15, 2007—officially released January 22, 2008
Terrence M. O’Neill, assistant attorney general, with
whom was Michael J. Lanoue, assistant attorney general,
and, on the brief, Henri Alexandre, assistant attorney
general, for the appellants (defendants).
F. Jerome O’Malley, for the appellee (plaintiff).
Opinion
PALMER, J. The sole issue raised by this appeal is
whether the trial court correctly concluded that a firework
known and marketed as ‘‘Piccolo Pete’’ is a ‘‘fountain’’
within the meaning of General Statutes § 29-3561
and, therefore, exempt from the general prohibition
against fireworks contained in General Statutes § 29-
357.2 The plaintiff, American Promotional Events, Inc.,
doing business as TNT Fireworks, brought this action
seeking declaratory and injunctive relief after the
named defendant, Richard Blumenthal, the attorney
general of the state of Connecticut,3 issued a cease and
desist order directing the plaintiff to cease any further
sales or distribution of Piccolo Pete. The trial court
rendered judgment for the plaintiff, concluding that Piccolo
Pete is an exempt ‘‘fountain’’ for purposes of §§ 29-
356 (3) and 29-357 (a). The trial court also enjoined the
state from preventing or seeking to prevent the plaintiff
from selling or distributing Piccolo Pete in this state. On
appeal,4 the state claims that the trial court incorrectly
concluded that Piccolo Pete is a fountain and, therefore,
subject to the statutory exemption applicable to such
products. We agree with the state and, accordingly,
reverse the judgment of the trial court.
The following undisputed factual and procedural
background is relevant to our resolution of the state’s
claim. The plaintiff is an Alabama corporation engaged
in the wholesale and retail sale and distribution of consumer
fireworks. The plaintiff has been doing business
in this state since about June, 2000, principally through
large, retail chain stores. Among the products that the
plaintiff sells and distributes is Piccolo Pete, a firework
that, upon ignition, emits a flame, some sparks and
smoke, and a loud whistling noise.
For some time prior to June 1, 2000, the use and
sale of fireworks generally, including sparklers, was
prohibited in this state. On that date, however, the legislature
passed Public Acts 2000, No. 00-198 (P.A. 00-
198), which amended General Statutes (Rev. to 1999)
§§ 29-356 and 29-357. Under that amendment, the unauthorized
use and sale of fireworks continued to be
banned. See P.A. 00-198, § 2. Although sparklers were
included in the definition of fireworks, the legislature
carved out an exception for the sale and use of sparklers
that were nonexplosive, nonaerial and did not contain
more than 100 grams of pyrotechnic mixture per item.
Id., codified at General Statutes (Rev. to 2001) § 29-357
(a).5 Piccolo Pete meets those requirements, and the
plaintiff sold and distributed Piccolo Pete as a sparkler
in reliance on the provisions of P.A. 00-198.
In June, 2005, however, personnel from the office of
the state fire marshal of the department of public safety
conducted a field test of Piccolo Pete after being alerted
by local fire marshals that the product potentially was
unsafe. The test revealed that, when ignited, Piccolo
Pete produces sparks, smoke, a whistling noise and a
four to five inch open flame that lasts for five to six
seconds. On June 27, 2005, acting on the state fire marshal’s
determination that Piccolo Pete was not a sparkler
within the meaning of General Statutes (Rev. to
2005) § 29-357 (a),6 the attorney general issued a cease
and desist order requiring, inter alia, that the plaintiff
immediately discontinue the sale and distribution of
Piccolo Pete.7 The plaintiff complied with the cease and
desist order8 but thereafter commenced the present
action seeking both a declaratory judgment that Piccolo
Pete is a lawful product and an injunction prohibiting
the state from bringing or threatening to bring any
enforcement action against it for the distribution or
sale of Piccolo Pete in this state.
While the plaintiff’s action was pending in the trial
court, the legislature again amended §§ 29-356 and 29-
357 in 2006. Public Acts 2006, No. 06-177, §§ 1 and 2
(P.A. 06-177) (effective June 9, 2006).9 Under the amendments,
‘‘ ‘[s]parklers’ ’’ are defined as a ‘‘wire or stick
coated with pyrotechnic composition that produces a
shower of sparks upon ignition’’; id., § 1, codified at
General Statutes § 29-356 (2); and ‘‘ ‘[f]ountain’ ’’ is
defined in relevant part as ‘‘any cardboard or heavy
paper cone or cylindrical tube containing pyrotechnic
mixture that upon ignition produces a shower of colored
sparks or smoke. . . .’’ P.A. 06-177, § 1, codified
at General Statutes § 29-356 (3). Although neither sparklers
nor fountains fall within the statutory definition
of fireworks; see General Statutes § 29-356 (1); it is
unlawful to use, sell or distribute sparklers and fountains
unless they are nonexplosive, nonaerial and contain
not more than 100 grams of pyrotechnic mixture
per item.10 General Statutes § 29-357 (a). In fact, the
unlawful use, sale or distribution of sparklers and fountains
is subject to criminal sanctions.11 General Statutes
§ 29-357 (d).
At trial, both parties presented expert testimony
regarding the pyrotechnic characteristics of Piccolo
Pete. Wayne H. Maheu, executive director of the division
of fire, emergency and building services of the
department of public safety, testified for the state.
According to Maheu, the field tests that he had conducted
on behalf of the office of the state fire marshal
revealed that Piccolo Pete produced an exposed flame
of approximately four to five inches in height and five
to six seconds in duration. Maheu further testified that
Piccolo Pete emits only a limited amount of smoke
and sparks, and that the product’s dominant feature or
attraction is its flame. Maheu also indicated that he was
not aware of any other firework marketed or sold in
Connecticut that produces a flame as large as the flame
produced by Piccolo Pete.
John A. Conkling testified as an expert witness for
the plaintiff. Conkling is a chemist and consultant who
regularly testifies as an expert for the American Pyrotechnics
Association, the primary trade association of
the fireworks industry. Conkling testified that all sparklers
and fountains have some sort of flame associated
with them, that Piccolo Pete’s most striking pyrotechnic
effect is its whistle, and that a four to five inch flame
with a five to six second duration is not inconsistent
with the pyrotechnic effects of a fountain. In addition
to hearing the expert testimony, the trial court viewed
a video demonstration of an ignited Piccolo Pete.12
In support of its claim that Piccolo Pete is exempt
from the prohibition of § 29-357, the plaintiff maintained
that Piccolo Pete emits a shower of colored sparks, is
nonexplosive and nonaerial, and contains not more than
100 grams of pyrotechnic mixture. The state maintained
that Piccolo Pete’s flame is its primary pyrotechnic
effect and that Piccolo Pete does not produce sufficient
sparks to constitute a ‘‘shower’’ of sparks within the
meaning of § 29-356 (2) or (3).
The trial court issued a memorandum of decision
denying the plaintiff’s request for declaratory and
injunctive relief. The court concluded that, although
Piccolo Pete does emit ‘‘some smoke and sparks from
[its] flame,’’ it does not produce a ‘‘shower’’ of sparks
within the meaning of § 29-356 (2) or (3) and, therefore,
is not a sparkler or fountain within the meaning of those
statutory provisions.
The plaintiff thereafter filed a motion to reargue in
which it asserted, for the first time, that, under § 29-
356 (3), a firework that produces either a ‘‘shower of
colored sparks or smoke’’ is a fountain as long as it
also is nonexplosive, nonaerial and does not contain
more than 100 grams of pyrotechnic mixture. (Emphasis
altered.) The plaintiff further maintained that,
because Piccolo Pete produces at least some smoke
and otherwise meets the requirements of § 29-356 (3),
it is a fountain and, therefore, exempt from the general
ban on fireworks. See General Statutes § 29-357 (a). In
response to the plaintiff’s motion, the state claimed
that § 29-356 (3) must be construed to require either a
shower of colored sparks or a shower of smoke.
According to the state, Piccolo Pete does not satisfy
the latter requirement because it only produces a small
amount of smoke, and the minimal amount of smoke
that it does produce is ancillary to its primary pyrotechnic
effect, which, the state asserted, is its four to five
inch flame.
The trial court granted the plaintiff’s motion and,
after reargument, issued a second memorandum of
decision in which it concluded that, ‘‘since Piccolo Pete
emits smoke,’’ it is a fountain within the meaning of
§ 29-356 (3). In accordance with its conclusion, the trial
court rendered judgment for the plaintiff and issued an
injunction prohibiting the state from taking any action
against the plaintiff or its retail agents for selling or
distributing Piccolo Pete.
On appeal, the state claims that the trial court incorrectly
concluded that Piccolo Pete is a fountain within
the meaning of § 29-356 (3) merely because it emits
smoke. In particular, the state maintains that, to fall
within the statutory definition of ‘‘fountain,’’ a firework
that does not produce a shower of sparks must, alternatively,
produce a shower of smoke, not just some smoke,
and otherwise meet the requirements of § 29-356 (3).13
In support of its claim, the state notes, and the plaintiff
concedes, that all fireworks produce at least some
smoke,14 and, therefore, to construe § 29-356 (3) as
merely requiring the emission of smoke, no matter how
small the amount, would render superfluous the provision
of § 29-356 (3) exempting fireworks that produce
a ‘‘shower of colored sparks . . . .’’ The state further
maintains that, reading §§ 29-356 and 29-357 together,
it is apparent that the legislature did not intend to grant
an exemption to an otherwise prohibited firework unless
the firework’s predominant pyrotechnic effect is
a shower of sparks or a shower of smoke. The state
contends that Piccolo Pete fails that test because the
four to five inch flame that Piccolo Pete produces, and
not the smoke that it emits, is the product’s primary
pyrotechnic effect. We agree with the state.15
The state’s claim raises an issue of statutory interpretation.
‘‘It is well settled that in construing statutes,
[o]ur fundamental objective is to ascertain and give
effect to the apparent intent of the legislature. . . .
[W]e seek to determine, in a reasoned manner, the
meaning of the statutory language as applied to the
facts of [the] case, including the question of whether
the language actually does apply.’’ (Internal quotation
marks omitted.) Greco v. United Technologies Corp.,
277 Conn. 337, 347, 890 A.2d 1269 (2006). To ascertain
the meaning of a statute, we look first to the text of
statute itself and its relationship to other statutes. General
Statutes § 1-2z. If the statute is not plain and unambiguous,
16 ‘‘we also look for interpretive guidance to
the legislative history and circumstances surrounding
its enactment, to the legislative policy it was designed
to implement, and to its relationship to . . . common
law principles governing the same general subject matter.’’
(Internal quotation marks omitted.) Fedus v. Planning
& Zoning Commission, 278 Conn. 751, 756, 900
A.2d 1 (2006). Finally, we review the trial court’s construction
of the relevant statutory provisions de novo.
See, e.g., Greco v. United Technologies Corp., supra,
348.
General Statutes § 29-356 (3) defines ‘‘ ‘[f]ountain’’ as
‘‘any cardboard or heavy paper cone or cylindrical tube
containing pyrotechnic mixture that upon ignition produces
a shower of colored sparks or smoke.’’ (Emphasis
added.) The trial court concluded that Piccolo Pete is
a fountain because it produces some smoke and otherwise
meets the requirements of § 29-356 (3). See footnote
1 of this opinion. Under the court’s interpretation
of § 29-356 (3), however, the language ‘‘shower of colored
sparks’’ is mere surplusage because it is undisputed
that all fountains—indeed, all fireworks—
produce at least some smoke.
Interpreting a statute to render some of its language
superfluous violates cardinal principles of statutory
interpretation. ‘‘It is a basic tenet of statutory construction
that the legislature [does] not intend to enact meaningless
provisions.’’ (Internal quotation marks omitted.)
State v. Gibbs, 254 Conn. 578, 602, 758 A.2d 327 (2000);
see also Vibert v. Board of Education, 260 Conn. 167,
176, 793 A.2d 1076 (2002) (‘‘in interpreting a statute,
we do not interpret some clauses of a statute in a manner
that nullifies other clauses but, rather, read the
statute as a whole in order to reconcile all of its parts’’).
‘‘[I]n construing statutes, we presume that there is a
purpose behind every sentence, clause, or phrase used
in an act and that no part of a statute is superfluous.’’
(Internal quotation marks omitted.) Small v. Going Forward,
Inc., 281 Conn. 417, 424, 915 A.2d 298 (2007).
Because ‘‘[e]very word and phrase [of a statute] is presumed
to have meaning’’; Vibert v. Board of Education,
supra, 176; § 29-356 (3) must be construed, ‘‘if possible,
such that no clause, sentence or word shall be superfluous,
void or insignificant.’’ (Internal quotation marks
omitted.) Hatt v. Burlington Coat Factory, 263 Conn.
279, 310, 819 A.2d 260 (2003). In view of the fact that
the term ‘‘shower of colored sparks’’ is surplusage under
the trial court’s construction of § 29-356 (3), we reject
that construction. By contrast, the interpretation of
§ 29-356 (3) that the state advocates, namely, that the
smoke produced must be a shower of smoke and not
merely any amount of smoke, gives full meaning to all
of the statutory language.
We acknowledge that the term ‘‘shower of smoke’’
is not a commonly used term and that, under different
circumstances, we might be reluctant to construe a
statutory provision so as to ascribe such a meaning to
it. We are persuaded, however, that, as between the
construction that the state advocates, which affords
meaning to all of the language of § 29-356 (3), and the
trial court’s construction, which renders superfluous a
portion of the statute, the former construction is the
better, more plausible one. Moreover, we believe that,
by using the term ‘‘shower’’ of smoke, the legislature
was seeking to ensure that, to be classified as a fountain,
the firework must produce either a significant amount
of sparks or a significant amount of smoke, the effects
that represent the salient pyrotechnic characteristics
of the particular type of firework known as a fountain.
We also agree with the state that §§ 29-356 and 29-
357, when read together and in proper context, evince
a legislative intent that a firework shall be deemed to
fall within the limited exemption for sparklers and fountains
only if the primary or principal pyrotechnic effect
of the firework is the pyrotechnic effect that the legislature
expressly has permitted. Under § 29-356 (3), a fountain
is defined as a cardboard or heavy paper cone or
tube that produces a shower of colored sparks or smoke.
Because § 29-356 (3) does not mention any other pyrotechnic
effect, the defining pyrotechnic attribute or
characteristic of a fountain is the shower of colored
sparks or smoke that it produces. Of course, neither
of those two effects can be achieved without ignition,
which requires a flame that, in turn, necessarily causes
at least some smoke. Both the flame and resulting
smoke, however, are ancillary to the fountain’s primary
pyrotechnic effect of sparks or smoke.17 In other words,
a firework whose primary pyrotechnic effect is not a
shower of colored sparks or smoke simply is not a
fountain within the meaning of § 29-356 (3).
We find support for this conclusion in § 29-357. Under
that statutory section, the legislature has broadly prohibited
the use and sale of most fireworks that pose
significant public safety concerns because of their combustibility.
Indeed, prior to 2000, the use or sale of any
firework was prohibited in this state. In view of the
fact that fireworks are widely banned and otherwise
intensively regulated under our statutory scheme, it
would be contrary to that scheme to construe it as
permitting a dangerous and otherwise prohibited pyrotechnic
effect—in the present case, a four to five inch
exposed flame that lasts up to six seconds—merely
because that pyrotechnic effect is produced by a firework
that also emits a shower of colored sparks or
smoke. See, e.g., Thames Talent, Ltd. v. Commission
on Human Rights & Opportunities, 265 Conn. 127,
136, 827 A.2d 659 (2003) (when construing statutes,
we consider, inter alia, ‘‘the policy that the legislature
sought to implement in enacting the statute’’). In urging
us to adopt its interpretation of §§ 29-356 and 29-357,
the plaintiff not only ignores the overriding public safety
purpose of our statutes governing the use and sale of
fireworks, it also seeks a result that the legislature reasonably
could not have contemplated. See, e.g., Modern
Cigarette, Inc. v. Orange, 256 Conn. 105, 120, 774 A.2d
969 (2001) (in construing statutes, courts must use common
sense and presume that legislature intended reasonable
and rational result); see also Vibert v. Board
of Education, supra, 260 Conn. 177 (statutes should be
construed to avoid bizarre or absurd results).
The plaintiff asserts that the rule of lenity, which
provides that penal laws generally are to be construed
strictly against the state; see, e.g., State v. King, 249
Conn. 645, 681, 735 A.2d 267 (1999) (‘‘[c]riminal statutes
are not to be read more broadly than their language
plainly requires and ambiguities are ordinarily to be
resolved in favor of the defendant’’ [internal quotation
marks omitted]); requires us to read § 29-356 (3) as
authorizing the use and sale of fireworks that otherwise
meet the requirements of §§ 29-356 and 29-357 if those
fireworks produce some smoke. We are not persuaded
by this argument. ‘‘[T]he touchstone of [the] rule of
lenity is statutory ambiguity. . . . Thus, as the United
States Supreme Court has explained, courts do not
apply the rule of lenity unless a reasonable doubt persists
about the statute’s intended scope even after resort
to the language and structure, legislative history, and
motivating policies of the statute. . . . Moskal v.
United States, 498 U.S. 103, 108, 111 S. Ct. 461, 112 L.
Ed. 2d 449 (1990); accord State v. Jason B., [248 Conn.
543, 555, 729 A.2d 760, cert. denied, 528 U.S. 967, 120
S. Ct. 406, 145 L. Ed. 2d 316 (1999)]; see also Albernaz
v. United States, 450 U.S. 333, 342, 101 S. Ct. 1137, 67
L. Ed. 2d 275 (1981) (Lenity thus serves only as an aid
for resolving an ambiguity; it is not to be used to beget
one. The rule comes into operation at the end of the
process of construing what [the legislature] has
expressed, not at the beginning as an overriding consideration
of being lenient to wrongdoers. . . .); State v.
Courchesne, 262 Conn. 537, 556 n.15, 816 A.2d 562
(2003) (rejecting contention that rule of lenity applies
whenever defendant musters plausible interpretation
of criminal statute); State v. Albert, 252 Conn. 795, 803,
750 A.2d 1037 (2000) (rule of lenity does not require
statutory interpretation that frustrates evident legislative
intent).’’ (Citation omitted; internal quotation
marks omitted.) State v. Lutters, 270 Conn. 198, 219–20,
853 A.2d 434 (2004). Upon reviewing the language, context,
legislative genealogy and purpose of §§ 29-356 and
29-357, we conclude that no reasonable doubt exists as
to whether § 29-356 (3) requires the emission only of
some discernible amount of smoke. Therefore, the rule
of lenity is inapplicable.18 See id., 220.
Having concluded that the plaintiff was required to
demonstrate that Piccolo Pete produces a sufficient
amount of smoke to constitute a ‘‘shower’’ of smoke,
we also must determine whether the record is sufficient
to permit a finding that Piccolo Pete satisfies that statutory
requirement. We conclude that the record is insufficient
to support such a finding. Although the trial court
found that Piccolo Pete produced some smoke, just as
it produces some sparks, the court made no finding as
to whether Piccolo Pete produces a shower of smoke.19
Although it might be argued that ‘‘some’’ smoke does
not satisfy the requirement of a shower of smoke any
more than ‘‘some’’ sparks satisfy the requirement of a
shower of sparks, ordinarily, we likely would be required
to remand the case to the trial court for a finding
on the issue of whether Piccolo Pete emits sufficient
smoke to constitute a shower of smoke. We need not
do so in the present case, however, because we have
reviewed the same video demonstration of an ignited
Piccolo Pete that the trial court reviewed, and it is clear
from that video demonstration that (1) Piccolo Pete
produces only a small amount of smoke, (2) the smoke
that Piccolo Pete does emit is merely the ancillary byproduct
of the flame that Piccolo Pete produces and
not the primary or predominant pyrotechnic effect of
the firework,20 and (3) that smoke cannot possibly be
characterized as a shower of smoke within the meaning
of § 29-356 (3). Accordingly, no trial court reasonably
could conclude that Piccolo Pete is a fountain within
the meaning of § 29-356 (3).
The judgment is reversed and the case is remanded
with direction to render judgment for the defendants.
In this opinion the other justices concurred.
* The listing of justices reflects their seniority status as of the date of
oral argument.
1 General Statutes § 29-356 provides: ‘‘(1) ‘Fireworks’ means and includes
any combustible or explosive composition, or any substance or combination
of substances or article prepared for the purpose of producing a visible or
an audible effect by combustion, explosion, deflagration or detonation, and
includes blank cartridges, toy pistols, toy cannons, toy canes or toy guns
in which explosives are used, the type of balloons which require fire underneath
to propel the same, firecrackers, torpedoes, skyrockets, Roman candles,
Daygo bombs, and any fireworks containing any explosive or flammable
compound, or any tablets or other device containing any explosive substance,
except that the term ‘fireworks’ shall not include sparklers and
fountains and toy pistols, toy canes, toy guns or other devices in which
paper caps manufactured in accordance with the regulations of the United
States Interstate Commerce Commission or its successor agency for packing
and shipping of toy paper caps are used and toy pistol paper caps manufactured
as provided therein.
‘‘(2) ‘Sparklers’ means a wire or stick coated with pyrotechnic composition
that produces a shower of sparks upon ignition.
‘‘(3) ‘Fountain’ means any cardboard or heavy paper cone or cylindrical
tube containing pyrotechnic mixture that upon ignition produces a shower
of colored sparks or smoke. ‘Fountain’ includes, but is not limited to, (A)
a spike fountain, which provides a spike for insertion into the ground, (B)
a base fountain which has a wooden or plastic base for placing on the
ground, or (C) a handle fountain which is a handheld device with a wooden
or cardboard handle.’’
All references in this opinion to § 29-356 are to the current revision unless
otherwise indicated.
2 General Statutes § 29-357 provides in relevant part: ‘‘(a) Except as provided
in subsection (b) of this section, no person, firm or corporation shall
offer for sale, expose for sale, sell at retail or use or explode or possess
with intent to sell, use or explode any fireworks. 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 (1) such sparklers and fountains
do not contain magnesium, except for magnalium or magnesium-aluminum
alloy, (2) such sparklers and fountains containing any chlorate or perchlorate
salts do not exceed five grams of composition per item, and (3) when more
than one fountain is mounted on a common base, the total pyrotechnic
composition does not exceed two hundred grams.
‘‘(b) The State Fire Marshal shall adopt reasonable regulations, in accordance
with chapter 54, for the granting of permits for supervised displays
of fireworks or for the indoor use of pyrotechnics, sparklers and fountains
for special effects by municipalities, fair associations, amusement parks,
other organizations or groups of individuals or artisans in pursuit of their
trade. . . .
‘‘(d) Any person, firm or corporation violating the provisions of this section
shall be fined not more than one hundred dollars or imprisoned not more
than ninety days or be both fined and imprisoned, except that (1) any person,
firm or corporation violating the provisions of subsection (a) of this section
by offering for sale, exposing for sale or selling at retail or possessing with
intent to sell any fireworks with a value exceeding ten thousand dollars shall
be guilty of a class A misdemeanor, and (2) any person, firm or corporation
violating any provision of subsection (b) of this section or any regulation
adopted thereunder shall be guilty of a class A misdemeanor, except if death
or injury results from any such violation, such person, firm or corporation
shall be fined not more than ten thousand dollars or imprisoned not more
than ten years, or both.’’
All references in this opinion to § 29-357 are to the current revision unless
otherwise indicated.
3 Leonard C. Boyle, formerly the commissioner of public safety, also is a
defendant in this case. We hereinafter refer to the defendants collectively
as the state.
4 The state appealed from the judgment of the trial court to the Appellate
Court, and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
5 General Statutes (Rev. to 2001) § 29-357 (a) provides: ‘‘Except as provided
in subsection (b) of this section, no person, firm or corporation shall offer
for sale, expose for sale, sell at retail or use or explode or possess with
intent to sell, use or explode any fireworks, except, notwithstanding the
provisions of section 29-356, any 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 of not more than one hundred grams of
pyrotechnic mixture per item, which are nonexplosive and nonaerial.’’
6 The 2005 revision of § 29-357 (a) and the 2001 revision of § 29-357 (a),
at which P.A. 00-198, § 2, was codified, are identical.
7 The attorney general contended that Piccolo Pete was not exempt under
P.A. 00-198, which contained no definition or description of the term ‘‘sparkler,’’
due to the size of the exposed flame that Piccolo Pete produces and
the relatively small amount of sparks that it emits.
8 The cease and desist order also barred the plaintiff from selling or
distributing ‘‘any other product’’ that was prohibited by General Statutes
(Rev. to 2005) § 29-357. Piccolo Pete, however, is the only product that is
the subject of the present action. In addition, the cease and desist order
directed retailers of Piccolo Pete to cease all sales of the product. Those
retailers are not parties to this litigation.
9 Public Act 06-177 contains the current versions of §§ 29-356 and 29-357.
See footnotes 1 and 2 of this opinion.
10 The limited use of sparklers and fountains that do not meet those three
requirements may be permitted in accordance with regulations adopted by
the state fire marshal. See General Statutes § 29-357 (b). That type of use,
however, is not at issue in this appeal.
11 Because the cease and desist order and the present action both predated
the effective date of P.A. 06-177, namely, June 9, 2006, ordinarily, that public
act would not apply retroactively to the claims raised by this action. See,
e.g., State v. Skakel, 276 Conn. 633, 680–81, 888 A.2d 985 (substantive criminal
statutes have prospective applicability only), cert. denied, U.S. , 127
S. Ct. 578, 166 L. Ed. 2d 428 (2006). In view of the fact that P.A. 06-177 is
identical to the current revision of §§ 29-356 and 29-357, however, it governs
the rights of the parties going forward. Consequently, the parties requested
that the trial court resolve the issues raised by this case under General
Statutes (Rev. to 2005) §§ 29-356 and 29-357, as amended by P.A. 06-177,
§§ 1 and 2, and the court agreed to do so. Accordingly, our resolution of
this appeal also is governed by the 2006 amendments to General Statutes
(Rev. to 2005) §§ 29-356 and 29-357, or what is now the current revision of
those statutory sections.
12 The video demonstration also had an audio component that captured
the sound emitted by an ignited Piccolo Pete, in particular, its loud whistling
sound.
13 As we previously have explained, there is no dispute that Piccolo Pete
satisfies those other statutory requirements, that is, it is nonexplosive, nonaerial
and contains not more than 100 grams of pyrotechnic mixture.
14 The plaintiff conceded this fact at oral argument before this court.
15 The state also maintains that the trial court should not have granted
the plaintiff’s motion to reargue because that motion was predicated on a
claim that the plaintiff previously had not raised, namely, that because
Piccolo Pete produces at least some smoke, it is a fountain within the
meaning of § 29-356 (3). As the plaintiff asserts, however, a trial court has
broad discretion to reconsider a ruling in the interests of justice, and the
state, therefore, has a heavy burden of establishing that the trial court abused
that discretion. Nevertheless, because we agree with the state’s alternate
claim that Piccolo Pete is not a fountain for purposes of § 29-356 (3), we need
not address the state’s contention that the trial court improperly granted the
plaintiff’s motion to reargue.
16 We note that, under § 1-2z, if, after considering the text of the statute
itself and its relationship to other statutes, the meaning of the statutory text
is plain and unambiguous and does not yield absurd or unworkable results,
we are precluded from considering extratextual evidence of the meaning
of the statute. Because neither party persuasively contends that the statutory
provisions at issue in the present case are plain and unambiguous as applied
to the facts of this case, § 1-2z does not limit our review of the state’s claim.
17 Of course, under § 29-357 (a), the magnitude of these ancillary pyrotechnic
effects is limited by the fact that the sparkler or fountain may contain
no more than 100 grams of pyrotechnic mixture per item.
18 The plaintiff apparently claims that the term ‘‘shower of colored sparks
or smoke’’ is so vague that it is proper to ignore it in construing § 29-356
(3). Instead, the plaintiff ‘‘urges exclusive consideration of the pyrotechnic
effects expressly prohibited’’ by § 29-357, including explosions, aerial projectiles
and other fireworks that contain more than 100 grams of pyrotechnic
mixture. We note, first, that the plaintiff has not challenged the statutory
scheme on the ground of constitutional vagueness. With respect to the
plaintiff’s contention that we should disregard the ‘‘shower of colored sparks
or smoke’’ language of § 29-356 (3) as a matter of statutory construction,
we reject that argument because, as we previously have explained, to do
otherwise would run afoul of fundamental principles governing the interpretation
of statutes.
19 The court did not do so, of course, because of its determination that
some smoke is a sufficient amount of smoke to qualify a firework as a
fountain for purposes of § 29-356 (3).
20 It need not be determined whether Piccolo Pete’s predominant pyrotechnic
effect is its whistle, as Conkling, the plaintiff’s expert, testified, or its
flame, as Maheu, the state’s expert opined. For purposes of this appeal, it
is sufficient that Piccolo Pete’s primary pyrotechnic effect is not the smoke
that it emits.
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