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Fireworks case tossed: State wanted to make example of Weare man, embarrassed itself instead, says lawyer

New Hampshire Union Leader

March 19. 2018 3:02PM
Donald Fanny of Weare holds a box of fireworks similar to the one that led to him to being charged by the state Fire Marshal's Office for allegedly selling fireworks at his flea market table in Warner. At left is his attorney, Evan Nappen. (DAVID LANE/UNION LEADER FILE)

WEARE — A Merrimack County judge has dismissed a case brought by state fire officials last summer against a Weare man, charged with selling fireworks at a flea market — after ruling no such sale actually occurred.

“They wanted to make an example out of someone a few days before the Fourth of July,” said Atty. Evan Nappen, who represents Donald Fanny, 66, of Weare. “Instead, they embarrassed themselves.”

Fanny was arrested June 25, 2017, on a single misdemeanor count of sale of permissable fireworks — a Class B misdemeanor, punishable by up to a $1,200 fine — after State Fire Marshal’s Office Investigator Adam Fanjoy approached his table at the Davisville Flea Market in Warner.

Fanjoy observed a single 8- by 8-inch box of “Saturn Missiles” mixed in among fishing equipment, knives and other sporting goods on Fanny’s table, with no advertising aside from a tag showing Fanny’s $10 asking price.

“One box. That was it,” said Fanny, a retired machinist. “Next day I’m on the news, my name is there in big letters and my wife is laughing.”

State fire officials issued a news release announcing Fanny was caught selling fireworks illegally.

In the news release sent to media outlets announcing Fanny’s arrest, distributed just ahead of the Fourth of July holiday last summer, State Fire Marshal Bill Degnan reminded all citizens and visitors to New Hampshire that individuals must be both licensed and locally permitted to sell fireworks, and that fireworks can only be offered for sale or purchased from one of 27 approved retail store locations.

Fanny said Fanjoy approached his table at the flea market in plainclothes, and seemed interested in the box of Saturn Missiles.

“He picked it up and asked me, ‘Is this for sale?’ and then asked me how much?” said Fanny. “I told him $10, and he asked me if I had a license to sell fireworks. I said I didn’t know you needed one. He showed me his badge, and wrote me up a summons.”

Fanny said he turned on his TV the next day and “there was my name in big letters on it, saying I’m a fireworks dealer.”

Nappen petitioned the 6th Circuit - District Division in Hillsborough to dismiss the charge on the grounds that no sale or transfer was consummated.

A judge agreed with Nappen, writing “the state cannot reasonably argue that the item was given or transferred voluntarily in any way to the arresting officer.”

“The officer merely picked the item up, asked if it is for sale, and when he was told it was for sale, rather than consummating the sale he simply seized the item and arrested the defendant,” reads the order to dismiss.

“The outcome is even more dramatic than a ‘not guilty’ verdict,” said Nappen. “The state’s case did not reach the stage in the trial where the defense presents its side, because the evidence of a sale did not even exist. The attempt to make an example of Mr. Fanny and his one firework on June 25, right before the (Fourth of July), was obviously conducted so poorly, that evidence of the key element of the offense charged, a sale, never took place. Yet, the ink was barely dry on the misdemeanor complaint against Mr. Fanny, before the public news release was issued by the state.”

Degnan said in an email last summer that his office regularly spot-checks flea markets, convenience stores and other locations “based upon complaints received from citizens and historical activity regarding illegal firework sales at these various locations.”

“We investigate each complaint as they are reported as state law requires licensing, local and federal permits and a permanent structure to sell fireworks,” Degnan wrote. “It only takes one firework to injure or kill a person. The New Hampshire licensed fireworks stores during the sale of fireworks offer safety information and advice to the consumer on safe practices for the firework device they are purchasing. This is important for the safest possible use of these explosives.”

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