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Fireworks company wins appeal in Prescott lawsuit

In a decision filed Feb. 1, a Wisconsin appeals court reversed a Pierce County judge's decision ordering fireworks be moved from a Prescott warehouse and fining a company nearly $2,000.

The District III Court of Appeals ruled Judge Robert Wing, who is now retired, erred when he found Victory Fireworks, not Premium Properties, was the proper defendant in the case and then found Victory guilty of violating a Prescott city ordinance.

According to background in the appeals court decision, Premium Properties owns a warehouse in Prescott that Victory leases to store fireworks. The two companies are separate legal entities, and neither owns any interest in the other, but Wayne Schulte is the general partner in Premium and sole owner of Victory.

In February 2006, the City of Prescott issued 13 citations accusing Premium of violating a city law prohibiting a dealer or wholesaler from storing fireworks within 500 feet of a residence. After two years, the municipal court judge ruled the city couldn't enforce the ordinance because it is stricter than state law.

The city appealed to Judge Wing, who found the ordinance is enforceable. At that point, Premium Properties moved to dismiss, arguing that, while it owned the warehouse, Victory owned the fireworks.

During an Oct. 28, 2009, hearing, Judge Wing agreed Premium was not the proper defendant for the citations. Rather than dismissing the tickets, he substituted Victory as the defendant and immediately found Victory guilty on all 13 counts. He ruled the fireworks could be stored no closer than 500 feet from a residence and ordered Victory to pay fines totaling $1,681.

While Judge Wing didn't give on the record his legal basis for amending the citations, he did state "Victory Fireworks and Wayne Schulte are one in the same thing with Premium Properties..."

Victory Fireworks and Premium Properties appealed that decision, and the city argued amending the citations was reasonable because both Victory and Premium are controlled by Schulte.

"The problem with the city's argument and the circuit court's conclusion is that, regardless of its relationship with Schulte and Premium Properties, Victory Fireworks is a separate legal entity," ruled the appeals court.

The higher court found that, because the tickets were issued against Premium, Victory was never ticketed and never had a chance to hear and dispute evidence.

"This is prejudicial as a matter of law, to say nothing of violating basic notions of due process," says the decision.

The appeals court concluded, "If the city wanted to cite Victory Fireworks for ordinance violations, it should have done so long before the final evidentiary hearing."

"We are pleased that the court of appeals saw the case the way we raised it," said Victory's lead attorney John O. Olson of Lake Geneva. "When you get what you asked for, you've got to be pleased."

The Victory attorneys said they aren't sure if fireworks are stored in the building now because that often depends upon the season.

"When they are there, they are stored in compliance with the law," said Olson's associate, Martha Cordell. She wouldn't say if that meant the state law or the city ordinance.

Prescott City Administrator Elizabeth Frueh said Monday morning city officials have not decided how they will proceed and have not had time to discuss the appeals court ruling with their attorney.

She said the last she heard, fireworks were no longer being stored in the warehouse.

Judy Wiff

Judy Wiff has been regional editor for RiverTown’s Wisconsin newspapers since 1996. She holds a bachelor’s degree in journalism and sociology from UW-River Falls. She has worked as a reporter for several weekly newspapers in Wisconsin.

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