                          STATE OF MICHIGAN

                           COURT OF APPEALS



Z & Z FIREWORKS,                                                    UNPUBLISHED
                                                                    May 25, 2017
               Plaintiff-Appellant,

v                                                                   No. 333642
                                                                    Macomb Circuit Court
CITY OF ROSEVILLE,                                                  LC No. 2014-001928-NI

               Defendant-Appellee.


Before: SERVITTO, P.J., and CAVANAGH and FORT HOOD, JJ.

PER CURIAM.

        In this action alleging preemption of a local ordinance by the Michigan Fireworks Safety
Act (MFSA), MCL 28.451 et seq., plaintiff appeals as of right the trial court’s order granting
summary disposition in favor of defendant and denying summary disposition to plaintiff. We
affirm.

       Plaintiff argues that because MCL 28.457(1) of the MFSA preempts the enforcement of
defendant’s ordinance, summary disposition should not have been granted in favor of defendant.
We disagree.

        “This Court [] reviews de novo decisions on motions for summary disposition brought
under MCR 2.116(C)(10).” Pace v Edel-Harrelson, 499 Mich 1, 5; 878 NW2d 784 (2016). A
motion for summary disposition pursuant to MCR 2.116(C)(10) “tests the factual sufficiency of
the complaint.” Joseph v Auto Club Ins Assoc, 491 Mich 200, 206; 815 NW2d 412 (2012). “In
evaluating a motion for summary disposition brought under this subsection, a trial court
considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the
parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion.”
Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). Summary disposition is proper
where there is no “genuine issue regarding any material fact.” Id. “Whether a state statute
preempts a local ordinance is a question of statutory interpretation and, therefore, a question of
law that we review de novo.” Ter Beek v City of Wyoming, 297 Mich App 446, 452; 823 NW2d
864 (2012).

        “Under the Michigan Constitution, the City’s ‘power to adopt resolutions and ordinances
relating to its municipal concerns’ is ‘subject to the constitution and the law.’ ” Ter Beek v City
of Wyoming, 495 Mich 1, 19; 846 NW2d 531 (2014), quoting Const 1963, art 7, § 22. With
respect to that clause of the Michigan Constitution, the Michigan Supreme Court has held that
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“[w]hile prescribing broad powers, this provision specifically provides that ordinances are
subject to the laws of this state, i.e., statutes.” AFSCME v Detroit, 468 Mich 388, 410; 662
NW2d 695 (2003).

        “A state statute preempts regulation by an inferior government when the local regulation
directly conflicts with the statute or when the statute completely occupies the regulatory field.”
USA Cash # 1, Inc v Saginaw, 285 Mich App 262, 267; 776 NW2d 346 (2009). “For purposes of
preemption, a direct conflict exists between a local regulation and a state statute when the local
regulation permits what the statute prohibits or prohibits what the statute permits.” McNeil v
Charlevoix Co, 275 Mich App 686, 697; 741 NW2d 27 (2007). Alternatively, field preemption
occurs when “the state statutory scheme preempts the ordinance by occupying the field of
regulation which the municipality seeks to enter, to the exclusion of the ordinance, even where
there is no direct conflict between the two schemes of regulation.” Ter Beek, 495 Mich at 19-20,
quoting People v Llewellyn, 401 Mich 314, 322; 257 NW2d 902 (1977). A state statutory
scheme may be determined to occupy the entire field of regulation to the exclusion of local
ordinances when “the state law expressly provides that the state’s authority to regulate in a
specified area of the law is to be exclusive”; where, “upon an examination of [the statutory
scheme’s] legislative history[,] there is an implication of an intent to be exclusive”; based on “the
pervasiveness of the state regulatory scheme”; or where “the nature of the regulated subject
matter may demand exclusive state regulation to achieve the uniformity necessary to serve the
state’s purpose or interest.” Llewellyn, 401 Mich at 323-324. However, even where field
preemption exists “a municipality is [not] preempted from enacting ordinances outside the field
of regulation occupied by the state statutory scheme[.]” Id. at 330.

        The statute relied upon by plaintiff in this case states that “[e]xcept as provided in this
act, a local unit of government shall not enact or enforce an ordinance, code, or regulation
pertaining to or in any manner regulating the sale, display, storage, transportation, or distribution
of fireworks regulated under this act.” MCL 28.457(1). Meanwhile, defendant’s ordinance, the
Roseville Ordinances requires businesses seeking to sell goods from a temporary structure to
obtain a license. Roseville Ordinances, § 219-29. Those licenses, however, are prohibited
unless “[t]he proprietor or owner of the business conducting such sales is an established
merchant.” Roseville Ordinances, § 219-30A. An established merchant is required to have “an
ongoing business of selling and/or delivering goods and/or services . . . within [defendant city]
from a fixed location within a permanent structure[.]” Roseville Ordinances, § 219-28. By
definition, a “tent” is not a permanent structure pursuant to the ordinance. Roseville Ordinances,
§ 219-28. Further, the license requires proof that not only is the business being run by an
established merchant, but that the temporary structure is adjacent to the required permanent
structure and that the goods being sold are of a substantial similarity to the goods sold at its
“ongoing adjacent business” and “representing at least 10% of the sale revenues within the
preceding 12 months.” Roseville Ordinances, § 219-32B-C.

       Relying on that ordinance, defendant denied plaintiff’s applications for licenses to sell
fireworks from tents because plaintiff was not an established merchant and failed to provide
proof that plaintiff maintained an ongoing business selling substantially similar goods that
amounted to 10% of plaintiff’s gross sales. Plaintiff asserts that defendant’s enforcement of that
ordinance against plaintiff’s fireworks sales business was preempted by MCL 28.457(1)
(emphasis added), because the statute prohibits cities from “enact[ing] or enforc[ing] an

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ordinance . . . pertaining to or in any manner regulating the sale . . . of fireworks regulated under
this act.”

        Considering direct conflict preemption first, this Court must find that MCL 28.457(1)
preempts defendant’s ordinance if “the local regulation permits what the statute prohibits or
prohibits what the statute permits.” McNeil, 275 Mich App at 697. In the simplest terms
possible, MCL 28.457(1) contains no guidance regarding the sale of goods from temporary
structures, and defendant’s ordinance does not specifically mention or regulate fireworks. If
MCL 28.457(1) stated that fireworks must be permitted to be sold in tents, or if the ordinance
stated that fireworks could not be sold in tents, then the outcome would be different. However,
when comparing their plain language, which this Court is bound to do, Ronnisch Constr Group v
Lofts on the Nine, LLC, 499 Mich 544, 552; 886 NW2d 113 (2016), there is no direct conflict
between the statute and defendant’s ordinance, because there is no evidence that “the local
regulation permits what the statute prohibits or prohibits what the statute permits.” McNeil, 275
Mich App at 697.

        Next, this Court must consider whether the field of fireworks regulation is entirely
occupied by the MFSA, and if so, whether defendant’s ordinance is thereby preempted. Recall
that, even where field preemption exists “a municipality is [not] preempted from enacting
ordinances outside the field of regulation occupied by the state statutory scheme[.]” Llewellyn,
401 Mich at 330. As discussed, supra, defendant’s ordinance regulates the sale of goods from
temporary structures. In other words, defendant’s ordinance did not attempt to enter the field of
fireworks sales regulation, but did so only incidentally because plaintiff wanted to sell fireworks
from a tent. As such, defendant’s ordinance was not subject to the field preemption of the
MFSA, because defendant was free to “enact[] ordinances outside the field of regulation
occupied by the state statutory scheme[.]” Llewellyn, 401 Mich at 330.

        Plaintiff’s reliance on Mich Coalition for Responsible Gun Owners v Ferndale, 256 Mich
App 401, 413-414; 662 NW2d 864 (2003), to argue to the contrary is misplaced, because the
ordinance in that case specifically regulated where guns could be carried, while the state statute
specifically stated that local units of government could not regulate where guns could be carried.
In the present case, however, while the state statute says that a local unit of government cannot
regulate the sale of fireworks, the ordinance does not attempt to do so. Rather, as stated, the
ordinance regulates the sales of goods from temporary structures. Therefore, this Court’s
determination that there was preemption in Mich Coalition is inapplicable to this case.

       Affirmed.



                                                              /s/ Deborah A. Servitto
                                                              /s/ Mark J. Cavanagh
                                                              /s/ Karen M. Fort Hood




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