The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5536

August 9, 1979

FIREWORKS:

Storage of

WORDS AND PHRASES:

'Wholesaler', 'dealer', 'jobber'

When storing fireworks, a retailer of fireworks must comply with the requirements set forth in 1931 PA 328, Chap XXXIX, Sec. 243d.

The requirements for storage of fireworks set forth in the statute does not apply to the display of fireworks for sale by a retailer. However, the quantity displayed for retail should be limited to a reasonable amount so as to not constitute storage of the fireworks.

Honorable Robert D. Young

State Senator

The Capitol

Lansing, Michigan 48909

You have requested my opinion as to whether a retailer is a person within the purview of the phrase 'wholesaler', 'dealer', or 'jobber' which appears in section 243d of the Penal Code, 1931 PA 328, Chap XXXIX, Sec. 243d, as last amended by 1976 PA 36, MCLA 750.243d; MSA 28.440(4).

1931 PA 328, Sec. 243d, supra, states:

'The storage of fireworks at the site of a wholesaler, dealer, or jobber shall be as follows: . . ..'

Following this introductory statement appears a series of seven subsections delineating various conditions under which fireworks must be stored. For example, subsection 243d(a) requires that they be stored in a noncombustible, one-story building without a basement which is 'weather resistant, well ventilated, and equipped with a strong door kept securely locked except when open for business.'

As noted by the court in Detroit Edison Co v Secretary of State, 281 Mich 428; 275 NW 196 (1937), where a statute defines a term in common understood language with nothing present to indicate that the word used was intended to convey a meaning other than is commonly understood, a court will not attach a different or contrary meaning, but will adopt the generally-accepted definition.

In my opinion, the word 'dealer' includes within its compass a person who sells goods at retail.

In Great Atlantic & Pacific Tea Co v Cream of Wheat Co, 227 F 46 (1915), the court defined the term 'wholesaler' as one who buys in comparatively large quantities and sells, usually in smaller quantities, but never sells to the ultimate consumer. He sells goods either to a 'jobber' who is a middle-man, or to a retailer who sells to the consumer.

In Overall v Bezeau, 37 Mich 506 (1877), the court stated:

'. . . a dealer is one who makes successive sales as a business.'

Also, in Remy, Schmidt & Pleissner v Healy, 161 Mich 266, 276-277; 126 NW 202 (1910), the court recognized and applied the definition of 'dealer' to a person who sells at retail.

It may also be recognized that Black's Law Dictionary, 4th Edition (rev), p 487 defines a 'dealer' as one who buys to sell. A further indication that the commonly-understood meaning of the term 'dealer' includes a retailer is the definition of 'jobber' which appears in Black's Law Dictionary, 4th Edition (rev), p 970, which states:

'. . . One who buys and sells articles in bulk and resells them to dealers.'

Further indication of legislative intent may be gleaned from the definition of 'dealer' which appears in section 2(b) of the Explosives Act of 1970, 1970 PA 202, Sec. 2(b), MCLA 29.42(b); MSA 4.559(42)(b), which may be read in pari materia with 1931 PA 328, Chap XXXIX, Sec. 243d. This definition of 'dealer' states:

'. . . a person, not a manufacturer, engaged in the business of buying and selling explosives.'

It is therefore my opinion that a retailer of fireworks must comply with the requirements set forth in 1931 PA 328, Chap XXXIX, Sec. 243d, supra, when storing fireworks.

The fact that a retailer must comply with the requirements of 1931 PA 328, Chap XXXIX, Sec. 243d, supra, is not dispositive of the issues involved; it is also necessary to determine whether the display of fireworks for sale at retail must be made in a facility which meets the stringent requirements for the storage of fireworks.

Webster's Third New International Dictionary Unabridged (1961), p 2252, defines the term 'storage' to mean:

'the act of storing or state of being stored . . . specif: the safekeeping of goods in a warehouse or other depository'

Black's Law Dictionary, 4th Edition (rev), p 1584, defines the term 'storage' to mean:

'Safekeeping of goods in a warehouse or other depository.'

In Killian v Brith Sholom Congregation, 154 SW2d 387, 395 (Mo App, 1941), the Missouri Court addressed the issue of storage in relation to a retail merchant:

'. . . since the underlying idea of the word 'storage' is that of holding or safekeeping goods in a warehouse or other depository to await the happening of some future event or contingency which will call for the removal of the goods. As commonly used, the term is not to be applied to goods or merchandise on hand for immediate sale and disposition, as in the case of the monuments which Berger keeps on his premises for sale and not for storage, and which he sells, as does any other retail merchant, whenever a purchaser may be found.' [Emphasis added]

Thus, it is my opinion that the requirements for the storage of fireworks set forth in 1931 PA 328, Chap XXXIX, Sec. 243d, supra, would not apply to the displaying of fireworks for sale by a retailer. It should be observed that the quantity which is displayed for retail sale should be limited to a reasonable amount so as to not constitute the storage of fireworks.

Frank J. Kelley

Attorney General