By Mike Donoghue
The owner of Green Mountain Fireworks has filed a civil lawsuit against the town of Colchester and its police department, claiming municipal officials have damaged his business by obstructing potential sales to customers.
Matthew Lavigne said he hopes a settlement can be reached quickly that will allow his new store on Macrae Road to resume sales. Memorial Day weekend through the week after the July 4th holiday are primetime for selling their products, Lavigne said in court papers.
His wife, Bronwyn Proffitt-Higgins, pleaded not guilty in Vermont Superior Court in Burlington to illegal sale of fireworks on June 5. Proffitt-Higgins was released on court conditions. While Lavigne, 41, is listed as the owner, his wife has been the operator when police have visited the Colchester store, police said.
Lavigne said there will be three opportunities over the next week or so to resolve the issue, including a hearing in criminal court on Friday to consider a motion to dismiss the case against his wife.
He also noted the impending Colchester Selectboard meeting at 6:30 p.m. Tuesday, when Lavigne plans to discuss the issue. He said he wants the board to understand the business thought it complied with all requirements.
Lastly, there’s a hearing scheduled for the civil lawsuit next Wednesday on Lavigne’s request for a preliminary injunction to block the town from stopping his business from operating, Lavigne said.
The civil case also asks the court to order town officials to cease all threats of criminal penalties and other actions. It asks the police department be blocked from preventing Green Mountain Fireworks from “conducting reasonable business until this court can issue a declaratory judgment” on whether the store is in compliance with federal, state and local laws.
Also named as defendants in the civil lawsuit are town manager Aaron Frank and Colchester Police Chief Jennifer Morrison. Lavigne is representing himself in the civil suit, though he said his wife is licensed as a lawyer, but not in Vermont.
Green Mountain Fireworks began operating the Malletts Bay store in late April after working out of large tents in St. Albans in 2016 and in Milton in 2017.
Lavigne said he worked with both his landlord, Joe Handy, and with the Colchester Planning and Zoning Office to ensure the site complied with all required permits.
Burlington lawyer Lisa Shelkrot, who represents Proffitt-Higgins in the criminal case, said she believes her client had all the proper permits and should be allowed to resume selling fireworks.
Colchester Police have said since the store opened, officers have responded to 16 calls about fireworks between May 1 and June 4, compared to six cases during the same time period in 2017. Morrison said both St. Albans and Milton chiefs had reported the same problems.
Morrison said the company has one permit from the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives that covers “Class 1.3G Fireworks” for major displays, like at July 4th events for town celebrations. There is no ATF “Class 1.4 G Fireworks” permit to authorize sale to consumers buying over-the-counter items, the chief said.
Lavigne said he believes Colchester officials have misapplied the laws.
In a May 31 letter to Lavigne, town manager Frank said the town plans to prevent the unlawful sale of fireworks. He said police will seize items and also seek a fine up to $5,000 and imprisonment for up to a year.
“You have intentionally violated the statute, even after the town police department has visited with you on multiple occasions to address these issues with you,” Frank wrote.
Lavigne said the manager and the police chief are coming to the dance late. He said he began working with the zoning office seven months ago to get the business in compliance. Now the rules are being changed, he said.