The trial court found appellants Erma and William Hill guilty of illegal sale of fireworks, a Class A misdemeanor, pursuant to IND.CODE § 22-11-14-8. Each was assessed a fine of $250.00 plus court costs. Erma and William appeal that judgment. The facts relevant to this appeal are not in dispute as the parties filed a written stipulation of facts prior to trial. The facts are as follows.
On June 29, 1984, George Oakley of Or-land Park, Illinois, entered a fireworks store located in Cedar Lake, Indiana, and purchased fireworks that are listed and some fireworks that are not listed in IND. CODE § 22-11-14-8. 1Prior to the purchase, Oakley was asked by Erma to produce his driver's license showing his residence. In addition Erma asked, and Oakley did execute a document which in pertinent part provided as follows:
"I am a resident of the State of III, and am going to immediately ship all Indiana illegal fireworks directly out of the state of Indiana or have or will acquire any necessary permits required by law."
Erma then sold the various listed and unlisted fireworks to Oakley. All this time, William was in the store, represented himself as a salesman of the fireworks, and engaged in conversation with Oakley which ultimately led to the sale and delivery of the fireworks not listed in the statute.
There is one issue which this Court must review: whether the exemption contained in IND.CODE § 22-11-14-4 is applicable to the. acts of appellants.
IND.CODE § 22-11-14-4 provides certain exemptions to the prohibitive language © of § 22-11-14-8. The exempting statute provides:
"Nothing in this act shall be construed to prohibit any resident wholesaler, dealer, or jobber to sell at wholesale such fireworks as are not herein prohibited; or the sale of any kind of fireworks provided the same are to be shipped directly *494out of state; or the use of fireworks by railroads or other transportation agencies for signal purposes or illumination, or the sale or use of blank cartridges for a show or theater, or for signal or ceremonial purposes in athleties or sports, or for use by military organizations."
It is appellants' contention that their acts are clearly exempted by this statute. They read the statute as providing that the act does not prohibit the sale of any kind of fireworks provided the same are to be shipped directly out of state. Appellants urge that the "or" after the first semicolon in the statute is disjunctive and therefore, the statute provides several exemptions. On the other hand, the State argues that the "or" is of a conjunctive nature and therefore the sale of unlisted fireworks to be shipped directly out of state is not prohibited only if the seller is a resident wholesaler, dealer or jobber. The State concludes its argument by asserting that the sale to Oakley was a retail transaction and thus was not protected by the exemption.
This Court must accord statutory words, phrases, and punctuation their plain, ordinary, and usual meaning. Indiana v. Guardianship of McIntyre (1984), Ind.App., 471 N.E.2d 6. The punctuation, words and phrases in this case make the items listed in the exempting statute appear to be a series. For instance, when read in an ordinary fashion the statute does not prohibit any resident wholesaler, dealer or jobber from selling at wholesale the unlisted fireworks. It also does not prohibit the sale of any kind of fireworks if they are to be shipped directly out of the state. And, although it is not important to this case, the statute also does not prohibit the use of fireworks by railroads for signal purposes or illumination.
Based upon the foregoing, it is clear that the activity which the appellants engaged in is exempted from the prohibition of IND. CODE § 22-11-14-8. Therefore, the trial court is reversed. -
Reversed.
GARRARD, J., concurs. STATON, P.J., dissents with opinion.. IND.CODE § 22-11-14-8 provides:
"A person shall not sell at retail, or offer for sale at retail, any fireworks, novelties, or trick noisemakers other than the following:
(1) Dipped sticks or wire sparklers. However, total pyrotechnic composition may not exceed one hundred [100] grams per item. Devices containing chlorate or perchlorate salts may not exceed five [5] grams in total composition per item.
(2) Cylindrical fountains.
(3) Cone fountains.
(4) Illuminating torches.
(5) Wheels.
(6) Ground spinners.
(7) Flitter sparklers.
(8) Snakes or glow worms.
(9) Smoke devices.
(10) Trick noisemakers, which include:
(A) Party poppers.
(B) Booby traps.
(C) Snappers.
(D) Trick matches.
(E) Cigarette loads.
(F) Auto burglar alarms."