GLEN QUALLS V CITY OF DETROITAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
GLENN QUALLS, LETICIA QUALLS,
ELIZABETH QUALLS, PAUL SMIGELSKI, and
May 26, 1998
Wayne Circuit Court
LC No. 92-206766 NI
CITY OF DETROIT,
DONALD ROBINSON, RAYO BAKER,
ALBERTA WHITFIELD, FRANK JACKSON,
DONALD PAILEN, RICHARD LANG, GREG
PLUMMER, WILLIAM SNEED, and ROBERT P.
MICHALAK, et al.,
GLENN QUALLS, d/b/a HO LEE KOW
FIREWORKS FACTORY and d/b/a FIREWORKS
UNLIMITED, LETITIA QUALLS, BERTA E.
PEREZ, PAUL A. BRUSSE, individually and d/b/a
PYROTECHNIQUES, LTD., d/b/a HO LEE KOW
FIREWORKS FACTORY and FIREWORKS
Wayne Circuit Court
LC No. 85-515546 CZ
CITY OF DETROIT,
WILLIAM HART, DONALD L. ROBINSON,
JAMES BANNON, et al.,
GLEN QUALLS, LETICIA QUALLS, ELIZABETH
CITY OF DETROIT, DONALD L. ROBINSON,
RAYO BAKER, RICHARD LANG, WILLIAM
SNEED, ROBERT P. MICHALAK, DAVID VANN,
SANDRA SLAYTON, DONALD BLOOM, SETH
DOYLE, O. WILSON, and MARTIN WILLIAM, et
Wayne Circuit Court
LC No. 94-420312 CZ
Before: Hoekstra, P.J., and Murphy and Bandstra, JJ.
In these consolidated cases, plaintiffs appeal as of right from various orders of the lower courts
dismissing several claims filed against defendants which arose from the events surrounding the denial of
defendant Glenn Qualls’ application for a license to sell fireworks in the City of Detroit for the 1985
fireworks season. Defendant City of Detroit cross-appeals from an order of the lower court that
declared portions of the Detroit City Code preempted by state law. We affirm.
Our Supreme Court in Detroit v Qualls, 434 Mich 340; 454 NW2d 374 (1990) (“Qualls I”),
and a panel of this Court in Qualls v Detroit (“Qualls II”), unpublished opinion per curiam of the Court
of Appeals, issued March 6, 1991 (Docket Nos. 93518, 115434, 118836, 118837, 118908, and
94209), discussed the underlying facts and procedural history surrounding these cases. Any additional
facts that are necessary to resolving these cases will be discussed below.
Plaintiffs first argue that the lower court erred in finding that defendant City of Detroit did not
violate plaintiff Glenn Qualls’ right to due process in denying his application for a license to sell fireworks
for the 1985 fireworks season. Qualls was properly licensed for the 1984-1985 fireworks season;
however, this license expired on February 28, 1985, and Qualls did not apply for renewal of the license
until, at the earliest, March 16, 1985, when he filed a licensing fee for the following fireworks season.
On April 22, 1985, defendant Esther Shapiro notified Qualls that his application had been rejected
because, among other reasons, he had previously violated the city code. Qualls was not afforded notice
or a hearing before the denial of his application.
Detroit Code § 30-1-14 provides that “[u]nless the interested city departments notify the
consumer affairs department of an existing violation at least (15) days prior to the expiration of the
licenses, the licenses will be renewed.” Plaintiffs rely upon § 30-1-14 to argue that because Qualls’
license should have been automatically renewed absent an “existing violation,” Qualls had a vested
property interest in his license that entitled him to notice and a right to be heard before a decision was
made to deny his license application. We disagree. Although Qualls eventually sought renewal of his
license, he did so only after the license had expired. Accordingly, Qualls’ belated request for license
renewal caused Qualls’ to lose any property interest that he might otherwise have had in the license.
Both the federal and state constitutions provide that no person shall be deprived of life, liberty,
or property without due process. US Const, Am V; Const 1963, art 1, § 17. Our Supreme Court has
held that the holder of an occupational license has a property interest in that license and is entitled to due
process protection before either the revocation of the license or the denial of an application for renewal
of the license. Bundo v City of Walled Lake, 395 Mich 679, 695; 238 NW2d 154 (1976). Such
licensees are entitled to “rudimentary due process,” which entails notice of the proposed action and the
reasons given for this action, a hearing in which the licensee may present evidence and testimony and
confront adverse witnesses, and a written statement of findings on the part of the body taking the action.
Id., 696-697. However, in Eastwood Park Amusement Co v Mayor of East Detroit, 325 Mich 60,
74-75; 38 NW2d 77 (1949), our Supreme Court cited with approval State v Minneapolis-St. Paul
Metropolitan Airports Comm, 223 Minn 175, 187; 25 NW2d 718 (1947), where the Minnesota
Supreme Court held that “[a] prior expired license is functus officio and confers no rights upon the
licensee named therein. . . . In such cases, [the licencee’s] application for a license stands upon the
same basis as if [he] never had been licensed.” We agree with the lower court that Qualls’ license
expired by its own terms on February 28, 1985, and that Detroit Code § 30-1-14 did not give Qualls a
continuing property interest in his license. Accordingly, Qualls was afforded all the process that he was
due under the circumstances.
Plaintiffs next argue that certain portions of the city code relating to fireworks are
unconstitutionally prohibitory rather than permissibly regulatory. In Qualls I, our Supreme Court stated
that “[i]t is well established in Michigan that ordinances are presumed valid and the burden is on the
person challenging the ordinance to rebut the presumption.” Qualls I, supra, 434 Mich 364. Further,
“[w]hen the action relates to matters of economics or general social welfare, the test to determine
whether the law comports with due process is whether it bears a reasonable relation to a legitimate
governmental purpose.” Id., 365. Thus, our inquiry is limited to whether any state of facts either
known or which could reasonably be assumed affords support for the legislative action. Id., 366. And
although such facts might be debatable, the legislative judgment must be accepted. Id. After applying
this standard to the challenged code provisions, we conclude that plaintiffs have failed to rebut the
presumption of validity afforded to the provisions. Accordingly, the lower court did not err in finding
that the challenged code provisions are not unconstitutionally prohibitory.
Plaintiffs next argue that the state law regulating fireworks, namely, MCL 750.243a; MSA
28.440(1), is preempted by federal law, and that provisions of the state law are unconstitutionally vague
and therefore void. This Court, however, recently rejected both of these challenges to the state
fireworks laws in Stajos v Lansing, 221 Mich App 223; 561 NW2d 116 (1997). Accordingly, we
decline to consider the merits of plaintiffs’ claims any further.
Plaintiffs next argue that the lower court erred in finding “that the introductory prohibitory
language in MCL 750.243a(2)(d)’s list of prohibited chemicals was evidence of legislative intent to
totally prohibit consumer fireworks.” We find that plaintiffs have mischaracterized the lower court’s
ruling. The lower court did not interpret MCL 750.243a(2)(d); MSA 28.440(1)(2)(d) as evidence of
legislative intent to prohibit all consumer fireworks. Instead, the lower court “construe[d] MCL
750.243a[; MSA 28.440(1)] to be a general proscription against fireworks” unless excepted by the
statute. We conclude that the lower court’s interpretation of the statue is accurate.
Plaintiffs next argue that the lower court erred in dismissing their claims against defendants
sounding in civil rights violations. We have reviewed the reasons set forth by the lower court and
conclude that the lower court did not error in dismissing plaintiffs’ claims. Although the record reveals
that various defendants engaged in contemptuous conduct, we agree with the lower court that plaintiffs
failed to establish the existence of any actionable civil rights violations. Accordingly, for the reasons
stated by the lower court, plaintiffs’ claims were properly dismissed.
Plaintiffs next invite this Court to reconsider the panel’s decision in Qualls II, where it finalized a
June 27, 1989, interim order that declared that the “shipped directly out of state provision” in MCL
750.243a(3)(g); MSA 28.440(1)(3)(g) referred to shipment by common carrier only. Qualls II, supra.
We decline plaintiffs’ invitation to engage in this analysis because this issue is controlled by the law of the
case doctrine, which states that the decision of an appellate court is controlling at all subsequent stages
of litigation, so long as it is unaffected by a higher court's opinion, Reeves v Cincinnati, Inc (After
Remand), 208 Mich App 556, 559 (1995). Further, the law of the case doctrine generally applies
regardless of the correctness of the prior decision. Id. Although plaintiffs contend that amendments to
the Motor Carrier Safety Act, namely, MCL 480.13; MSA 9.1666(3) and MCL 480.15; 9.1666(5),
warrant reconsideration of this Court’s previous decision, we are not persuaded that the statutory
changes justify ignoring the law of the case doctrine.
On cross appeal, defendant City of Detroit argues that the lower court erred in declaring that
certain provision of the city code are preempted by state law. We disagree. The lower court found that
former § 19-3-64(a)(6) and (7), which prohibit the unlicensed sale of specific types of cone fountains,
cylinder fountains, and smoke devices, are preempted by MCL 750.243a(3)(d) and (e); MSA
28.440(3)(d) and (e), which provides that a permit is not required in this state to sell cylinder fountains
and toy smoke devices. Detroit Code § 19-3-64 has since been amended to ban the sale of all
cylinders and all smoke devices.
In Qualls I, our Supreme Court stated that “[a]bsent a showing that . . . the ordinance permits
what the statute prohibits or prohibits what the state permits, ‘[t]he mere fact that the state, in the
exercise of the police power, has made certain regulations does not prohibit a municipality from exacting
additional requirements.’” Qualls I supra, 434 Mich 361-362, citing 56 Am Jur 2d, Municipal
Corporations, § 374, pp 408-409. We find that plaintiffs established that § 19-3-64(a)(6) and (7)
prohibit what the state fireworks statute expressly permits. That is, the state statute expressly permits
the unlicensed sale of cylinder fountains and toy smoke devices, while the Detroit Code prohibits such
sales. Accordingly, we affirm the decision of the lower court that declared that former § 19-3-64(a)(6)
and (7) is preempted by state law.
/s/ Joel P. Hoekstra
/s/ William B. Murphy
/s/ Richard A. Bandstra