AMERICAN EAGLE FIREWORKS INC V CITY OF LANSING
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STATE OF MICHIGAN
COURT OF APPEALS
AMERICAN EAGLE FIREWORKS, INC.,
UNPUBLISHED
October 29, 2002
Plaintiff-Appellant,
v
No. 231631
Ingham Circuit Court
LC No. 99-090267-AW
CITY OF LANSING,
Defendant-Appellee.
Before: Holbrook, Jr., P.J., and Zahra and Owens, JJ.
PER CURIAM.
Plaintiff, American Eagle Fireworks, Inc., appeals as of right the grant of summary
disposition in favor of defendant, City of Lansing. We affirm.
I
The circumstances of this case are interwoven with another case that was recently acted
on by this Court.1 American Eagle Fireworks, Inc, v Lansing Fire Marshal, et al, unpublished
memorandum opinion of the Court of Appeals, issued March 1, 2002 (Docket No. 228474)
(hereinafter American Eagle I). Both cases revolve around a dispute that arose in the summer of
1999 concerning plaintiff’s attempts to obtain permits to sell wholesale fireworks. We review
the procedural history of American Eagle I solely to provide context for the current case on
appeal.
A. American Eagle I
On May 25, 2000, plaintiff filed with the Lansing City Clerk an application for a permit
to sell wholesale fireworks. In a letter sent to the city clerk on June 1, 2000, the Lansing Fire
Marshall indicated that the application could not be approved because of inadequate storage at
the two locations identified in plaintiff’s application.2
1
A protracted history of disputes between plaintiff and defendant regarding the sale of fireworks
has more than once resulted in an appeal to this Court. See, e.g., Stajos v Lansing, 221 Mich
App 223; 561 NW2d 116 (1997).
2
The letter also indicated that in order to receive a site-specific permit, plaintiff would need to
(continued…)
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Thereafter, plaintiff filed in the circuit court a complaint seeking writs of mandamus and
superintending control. “The circuit court dismissed the complaint, finding that defendants had
no clear legal duty to issue the permit.” American Eagle Fireworks I, supra at 1. On appeal to
this Court, plaintiff asserted that MCL 750.243b allows a municipality to maintain reasonable
control of fireworks, and that pursuant to Lansing Ordinance 1615.04, the city’s fireworks
ordinance, plaintiff was only required to satisfy three conditions to obtain a permit. Because
plaintiff had allegedly satisfied the ordinance conditions, plaintiff argued that issuance of a
permit was mandatory. Plaintiff argued that section 243b(2) did not operate to grant defendant
discretion in the permit process if such discretion was not unambiguously retained in the
fireworks ordinance. In support of this assertion, plaintiff argued that language in the statute
indicating that a municipality “may grant a permit” actually should be read to mean “shall grant a
permit.” This Court disagreed:
Mandamus is an extraordinary remedy that may lie to compel the exercise
of discretion, but not to compel its exercise in a particular manner. Teasel v Dep’t
of Mental Health, 419 Mich 390, 410; 355 NW2d 75 (1984). Issuance of a writ of
mandamus is proper where (1) the plaintiff has a clear legal right to performance
of the specific duty sought to be compelled, (2) the defendant has the clear legal
duty to perform such act, and (3) the act is ministerial, involving no exercise of
discretion or judgment. Vorva v Plymouth-Canton Community School Dist, 230
Mich App 651, 655; 584 NW2d 743 (1998). The plaintiff must be without other
adequate legal or equitable remedy. Tuscola Abstract Co, Inc v Tuscola Co
Register of Deeds, 206 Mich App 508, 510; 522 NW2d 686 (1994).
MCL 750.243b(2) gives local authorities the discretion to grant permits to
allow resident wholesale dealers to possess fireworks otherwise prohibited by
MCL 750.243a. Specifically, that statute indicates that the “council or
commissioner of a city . . . may grant a permit . . . .” MCL 760.243b(2).
Contrary to plaintiff’s argument, the use of the word “may” indicates a
discretionary act, not a mandatory act. People v Grant, 445 Mich 535, 542; 520
NW2d 123 (1994); Port Huron v Amoco Oil Co, 229 Mich App 616, 631; 583
NW2d 215 (1998). City of Lansing adopted an ordinance allowing such permits
to be issued. City ordinance 1615.04 establishes three requirements for a permit
application to be considered complete. While plaintiff argues that satisfaction of
these conditions requires defendants to issue the permit, neither the statute nor the
ordinance states that a permit must be issued when a complete application is
filed. [American Eagle Fireworks, supra at 1-2 (emphasis added).]
B. The Case at Bar
On or about June 10, 1999, plaintiff submitted two additional applications for permits to
sell wholesale fireworks. These applications were rejected. Thereafter, plaintiff filed in the
circuit court a five-count complaint. Defendant brought a motion for summary disposition under
MCR 2.116(C)(8) and (10), which the trial court granted in all respects. We review plaintiff’s
(…continued)
apply for two permits, one for each identified location.
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challenge to the trial court’s decision de novo. Spiek v Dep’t of Transportation, 456 Mich 331,
337; 572 NW2d 201 (1998).
II
Plaintiff first argues that the trial court abused its discretion when it held that Plaintiff
was not entitled to a writ of mandamus requiring defendant to issue it a permit to sell certain
fireworks. In a variation of their argument in American Eagle I, plaintiff once again asserts that
the “may grant a permit” language of section 243b(2)3 should be read to mean “shall grant a
permit.” This time, however, plaintiff argues that this mandatory reading of the statute means
that defendant has no discretion in granting a permit to sell wholesale fireworks. Plaintiff
maintains that once the statutory storage requirements of MCL 750.243d are met, issuance of a
permit by defendant is mandatory, and thus a ministerial act. We disagree.
Traditionally, the issuance of a writ of mandamus is proper when the plaintiff has a clear
legal right to the discharge of a duty the defendant has a clear legal duty to perform, and no other
adequate remedy is available. Toan v McGinn, 271 Mich 28, 33; 260 NW 108 (1935); People v
Wayne County Judge, 1 Mich 359 (1850); Lickfeldt v Dep't of Corrections, 247 Mich App 299,
302; 636 NW2d 272 (2001). Michigan has identified two circumstances in which a clear legal
duty to act exists such that mandamus will lie to compel performance when the duty cannot be
enforced by any other means: (1) when the act sought to be compelled is clearly ministerial,
involving no exercise of discretion or judgment, Lickfeldt, supra at 302; and (2) when the
defendant is charged with the duty to perform an act which requires the exercise of discretion,
Teasel, supra at 410. In the latter situation, mandamus will not lie to compel the exercise of
discretion in a particular manner. Teasel, supra at 410.
MCL 750.243b clearly and unambiguously places discretion in the hands of Lansing
officials regarding the issuance of permits to sell wholesale fireworks. As the Court in American
Eagle I correctly concluded, “Contrary to plaintiff’s argument, the use of the word ‘may’
indicates a discretionary act, not a mandatory act.” American Eagle I, supra at 1. In support of
its assertion that “may” signals a mandatory act, plaintiff relies on Moore v Parole Bd, 379 Mich
624; 154 NW2d 437 (1967). However, the reasoning from Moore cited by plaintiff was only
able to garner the support of two justices of our highest Court. Further, “‘[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.” Detroit v Qualls, 434 Mich 340, 362; 454
3
Section 243b(2) reads:
The council or commission of a city or village or the township board of a
township, upon application in writing, may grant a permit, on forms provided by
the director of the department of state police, to a resident wholesale dealer or
jobber to have in his possession within the political jurisdiction, fireworks
otherwise prohibited by section 243a, for sale only to holders of permits as
provided in this section. A permit granted under this subsection is not
transferable, nor shall a permit be issued to a person under the age of 18 years.
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NW2d 374 (1990), quoting 56 Am Jur 2d, Municipal Corporations, § 374, p 408. Therefore,
plaintiff is not entitled to mandamus relief.
III
We also find meritless plaintiff’s argument that it was denied substantive due process by
the lack of adequate standards to guide the permit process. The first problem with plaintiff’s
argument is that it incorrectly mingles the concepts of substantive due process and delegation of
legislative authority. In support of its argument, plaintiff cites Osius v St Clair Shores, 344 Mich
693; 75 NW2d 25 (1956). The issue in Osius was whether a zoning ordinance contained
adequate standards to guide a zoning board in making decisions regarding applications for
building permits. Id. at 696-697. However, Osius was not decided on substantive due process
grounds. Rather, the holding in Osius was based on the Court’s conclusion that the complete
lack of adequate standards in the ordinance in issue constituted an improper delegation of
legislative power to a nonlegislative body. Id. at 697-701.4
“The test to determine whether legislation enacted pursuant to the police power comports
with [substantive] due process is whether the legislation bears a reasonable relation to a
permissible legislative objective.” Shavers v Kelly, 402 Mich 554, 612; 267 NW2d 72 (1978).
Accord Goldblatt v Hempstead, 369 US 590, 594-595; 82 S Ct 987; 8 L Ed 2d 130 (1962) (“‘'To
justify the state in . . . interposing its authority in behalf of the public, it must appear—First, that
the interests of the public . . . require such interference; and, second, that the means are
reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon
individuals.’” [quoting Lawton v Steele, 152 US 133, 137; 14 S Ct 499; 38 L Ed 385 (1894)]).
Second, plaintiff has not identified the life, liberty, or property interest at stake. US
Const, Am XIV; Const 1963, art I, § 17. Clearly, section 243b does not burden a fundamental
personal right, nor can plaintiff legitimately claim to have an entitlement interest, regardless of
its expectation, in a permit that has yet to be awarded. See Board of Regents v Roth, 408 US
564, 577; 92 S Ct 2701; 33 L Ed 2d 548 (1972). Just as clearly, the regulation of the sale of
fireworks is within the realm of the state’s police power. Plaintiff does not argue, nor do we
believe a credible argument can be made, that section 243b does not bear a rationale relation to a
permissible legislative objective. Thus, we conclude that the statute does not violate substantive
due process.
To the extent that plaintiff is arguing that the statute fails under the theory of improper
delegation, we conclude that the argument is without merit. Under the Michigan Constitution,
Michigan cities are guaranteed the “power to adopt resolutions and ordinances relating to
4
We are aware that Milford v People’s Hospital Authority, 380 Mich 49, 59; 155 NW2d 835
(1968), stated that Osius was decided on substantive due process grounds. This characterization
of Osius is dicta that we both disagree with, and are not bound to follow. We note that not only
does Osius never specify that the ordinance in issue violated substantive due process, but the
concept is never even raised as an argument or an alternative ground for the decision. See
LeDuc, Michigan Administrative Law, § 5:08, p 16 (“Milford is the Rosetta Stone of confusion
between the two due process concepts and of the further confusion of those two concepts with
the concepts of separation of powers and delegation.”).
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municipal concerns . . . .” Const 1963, art 6, § 22. The Home Rule Cities Act, MCL 117.1 et
seq., grants broad authority to defendant to enact ordinances for the health and safety of its
residents. Further, pursuant to MCL 91.1, defendant possesses both the general “authority to
enact all ordinances . . . deem[ed] necessary for the safety . . . of the city, and the general welfare
of the inhabitants thereof . . . [,]” and the specific authority to “regulate the keeping, selling and
using of . . . fireworks . . . and the exhibition of fireworks . . . .” The authority bestowed by
MCL 750.243b(2) to permit the sale of fireworks otherwise prohibited by MCL 750.243a rests
squarely within this comprehensive constitutional and statutory framework, and properly invests
defendant with the authority to regulate uniquely municipal concerns, including the sale of
fireworks.
Additionally, this is not a situation where a legislative body has delegated its
responsibilities to an administrative body without providing adequate standards to guide the
administrative body. Osius, supra. The Lansing City Council is a constitutionally and
statutorily constituted legislative body. Const 1963, art 6, § 22; MCL 117.3(a) (providing that a
city charter must provide for the election “of a body vested with legislative power”). The
statutory scheme recognizes that the health and safety of the public will be best served by
granting to local political bodies the authority to regulate this permit process. See Qualls, supra
at 363. The fact that the Legislature has seen fit to proscribe how fireworks must be stored,
MCL 750.243d, does not in any way limit defendant’s ability to regulate according to its own
criteria, as long as the storage requirements of MCL 750.243d are respected. Qualls, supra at
363, n 42 (observing “that it is well established in Michigan that portions of a field not covered
by state law are open to local regulation, and that where the nature of the regulated subject matter
calls for regulations adopted to local conditions, supplementary local regulation will be upheld”).
Affirmed.
/s/ Donald E. Holbrook, Jr.
/s/ Brian K. Zahra
/s/ Donald S. Owens
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