
    City of Akron v. Budiani.
    
    (No. 76 CRB 03415
    Decided June 25, 1976
    Akron Municipal Court.
    
      Mr. James L. Biciett, for-plaintiff.
    
      <:-MíT. Richard Sternberg^fqr defendant,
    
      
       J[udgpien1; afijirined by Court of ,Appeals on December 30, 1976. (52 Ohio App. 2d 116.)
    
   George, J.

iTrial was had'on June 21,1976. The court at the request of'both; counsellor the city:and. counsellor the defendant yiewed three, samples.: of each of the 16 items confiscated from,the. defendant by the; AlcromPire Department! at fireworks ;j<the court has reviewed, briefs of counsel and'the authorities cited.,; ., .:r.. •

) i' Í On' :Mhy; (24,11976 the’ defendant,! Déno J. .Budiani,: Was charged: :with; violating, Akron City,. Code..Section71672:01 •by complaint iasfollows: C. . ■■■■ ;■ -A ' ■.,nr: A, •.

“Lt. H. Park being duly sworn, says that DenoL.Bu-diani at the":¡City of Akron,:'Summit County, Ohio;oh the 24th .'day-'Of May, 1976, DID;store or;sell fireworks at. whole;sale Which-is; .hereby prohibited, except, by permitfrom the Director.of-Public Safety, issued-for a period of one .year;?

■ The'; Akron City Code;, under Section,167,2;01; entitled “Storage orSale'at Wholesale; Permit,’’ reads

•. ;“The; storage or sale óf fireworks át wholesale is hereby prohibited; .except by permit; from the Director Of Public Safety, issued-for a period: of one year. Application , for such a permit ihust be filed with the Firé Chief at least thirty days prior to the issuance of the permit.'and must give a detailed description of the,proposéd care and storáge of such material® and of the. structural conditions¡ and occur pancies of:the building.” - .. - . .. .

Further Chapter 1672 indicates a erossireference. to Section 672.12" óf the Akron City Code. Section 672.12, entitled “Salé' óf Fireworks,” provides in the second paragraph as fellows: ■

“The termAfireworks’ means ány combustible or- explosive compositions, or any substance' or combination of súbr stance or article prepared for the purpose of producing a visible or Audible effect by combustión, explosion, deflagration or detonation, but shall not mean of include'toy pistols, toy canfes, "toy guns or other devices in which paper or plastic* Caps Containing twenty-five , hundredths grains, or less of explosive compounds are used, provided they: áre so constructed that the hand cannot come in contact with-the cap when in'}3laeé for the explosion/and toy pistol páper or plastic cajps whieh contain less than twenty hundreths grain of explosive mixture.” ' V ' ” . ■ f *i /

The question foremost ih the mind of the: prosecution and in the' mihd Of the defense with regard to the instant charge is whether or not 16 items, stored by the defendant Deno J Budiani for wholesale, are “fireworks.”: ¡ Should the items be defined as fireworks, then in that event, the defendant is; guilty of violating Section 1672.01 of the Akron City Code by not being licensed therefor. Should-such items not be defined as “fireworks” then, in that event, the defendant is not guilty.

Another question raised by the defense is whether or not the state has preempted the field of fireworks, by the enactment of Chapter 3743 of the Ohio Revised Code. That Chapter is captioned “Explosives; Fire Prevention” and therein is Section 3743.27 which provides a definition of the term “fireworks.” The court notes that the definition of fireworks under R. C. 3743.27(A), along with the exception set forth in R. C. 3743.32, is the same as that set forth under. Section 672.12 of the Akron City Code.

The court finds that under Section 1 of the Akron City Charter, the city:

■ “May license and regulate persons, corporations and associations engaged in any business, occupation, profession or trade; may define, prohibit, abate, suppress and prevent all things detrimental to the health, morals, comfort, safety, convenience, and welfare Of the; inhabitants of the City, and all nuisances and causes, thereof;
«# * *
• “And may make and enforce .local police, sanitary and other regulations * *

Such power is vested in municipalities by reason of Section 3 of Article XVIII of the Constitution of the state of Ohio which provides;

. “Municipalities shall have- authority, to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are. not in conflict with general laws.” .

. .The city of Akron in the instant case has enacted Chapter 1672, Akron City Code, as well as Section:672.12,. dealing with fireworks. The field of fireworks has not been preempted by reason of the state’s passage of R. C. Chapter .3743,. The validity of a local police regulation as is under consideration by this court, depends upon the existence or non-existence of a conflict with the general laws of the state.;' Columbus v. Glascock (1962), 117, Ohio App. 63; Akron v. Criner (1960), 112 Ohio App. 191; Akron v. Williams (1960), 113 Ohio App. 293.

The court finds that the Akron City Code Section 672.12, which defines fireworks and which is applicable to Section 1672.01 of the Akron City Code, is not in conflict with R. C. Chapter 3743 and, therefore, is constitutional.

Finally, the court has determined that the following items are fireworks within the meaning of Section 672.12 of the Akron City Code, and therefore are subject to the licensing requirement of Section 1672.01 of the Alerón City Code.

Item No. 1: Flying Disc

Item No. 2: Ground Bloom Flower

Item No. 3: Bicentennial Smoke Cartridge

Item No. 4: Assorted Smoke Balls

Item No. 5: Item No. 3965 Pary Poppers

Item No. 6: Item R32 Bottle Rocket

Item No. 7: Witch Whistle

Item No. 8: Boxed Snakes

Item No. 9: Acme Smoke

Item No. 11; Burglar Alarms

Item No. 12: Black Jack

Item No. 13: T260 Smoke Cartridges

Item No. 14: Dancing Butterflys

Item No. 15: M-80 Smoke '

Item No. 16: Auto Bombs

The court notes that Item No. 10 is a fake firecracker and it does not have any combustible or explosive compositions, or any substance or combination of substances or article prepared for the purpose of producing a visible or audible effect by combustion, explosion, deflagration or detonation.

Therefore, the court finds that Deno J. Budiani is guilty of violating Section 1672.01 by storage or selling of fireworks without a permit from the Director of Public Safety.

Defendant guilty.  