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UNITED STATES v. FOCHT

September 26, 1988

UNITED STATES OF AMERICA, Plaintiff,
v.
CHARLES FOCHT, an individual, and MARK FOCHT, an individual, doing business under the name LIBERTY INDUSTRIES, Defendants


Cohill, Chief United States District Judge.


The opinion of the court was delivered by: COHILL

COHILL, CHIEF UNITED STATES DISTRICT JUDGE.

 Presently before the Court is plaintiff's Motion for a Preliminary Injunction. On September 13, 1988, we conducted a hearing on plaintiff's motion and consolidated the trial on the merits with said hearing pursuant to Federal Rule of Civil Procedure 65(a)(2). For the reasons set forth below, we will deny plaintiff's motion and enter judgment for the defendants.

 I. BACKGROUND/FACTS

 The facts underlying this controversy are not in dispute; the parties disagree over the application of the law to those facts.

 The plaintiff, United States of America, acting on behalf of the Consumer Product Safety Commission (the "Commission"), brought this action to enjoin defendants, Charles Focht and Mark Focht, doing business as Liberty Industries ("Liberty"), from violating the Federal Hazardous Substances Act (the "Act"), 15 U.S.C. § 1261 et. seq.

 The Commission is an independent federal agency established pursuant to 15 U.S.C. § 2053, and charged pursuant to 15 U.S.C. § 2079(a) with the administration of the Act. This Court has jurisdiction pursuant to 28 U.S.C. § 1337 and § 1345. Venue in this district is proper under 28 U.S.C. § 1391(b).

 The defendants operate Liberty in Slippery Rock, Pennsylvania. Liberty is a mail order business engaged in the sale of paper and plastic fireworks components, including paper containers, plastic shells, plastic bases, fuses, end glue, spiral and parallel wound cardboard tubes, cardboard end plugs, and cardboard end discs. Liberty sells these items individually and in kit form. Liberty does not sell the chemicals which make up the pyrotechnic composition in completed fireworks, nor does Liberty sell manufactured fireworks of any kind.

 Liberty grosses approximately $ 30,000 per year from the sale of the components to customers both inside and outside the Commonwealth of Pennsylvania. Liberty delivers its orders in interstate commerce via United Parcel Service.

 On April 27, 1987, defendants delivered tubes, end plugs and fuses to Sidney C. Englander, an employee of the Commission, in Louisiana. On April 28, 1987, the defendants delivered tubes, end plugs and fuses to Joseph Kawecki, an employee of the Commission, in Illinois. On April 30, 1987, the defendants delivered tubes, end plugs and fuses to Dennis Donath, an employee of the Commission, in Wisconsin. On May 8, 1987, the defendants delivered tubes, end plugs, safety fuses, a sales order sheet and an order form to DuWayne A. Kapelis, an employee of the Commission, in Ohio. On June 10, 1987, the defendants delivered tubes and end plugs in interstate commerce to Gilbert Bodin, an employee of the Commission, in New Jersey.

 II. THE LAW ON PRELIMINARY INJUNCTIONS

 Pursuant to Section 8(a) of the Act, United States district courts have jurisdiction to restrain violations of the Act where cause is shown and Rule 65(a) and (b) of the Federal Rules of Civil Procedure are met. 15 U.S.C. § 1267(a).

 Because the government has instituted this action under a statutory provision, the government need only demonstrate two elements in order to obtain an injunction; (1) that a violation of the statute has occurred, and (2) that there exists a reasonable likelihood of recurrent violations. See United States v. Nutrition Service, Inc., 227 F. Supp. 375, 388-90 (W.D. Pa. 1964), aff'd 347 F.2d 233 (3rd Cir. 1965); United States v. W.T. Grant Co., 345 U.S. 629, 633, 97 L. Ed. 1303, 73 S. Ct. 894 (1953). The government is not required to show irreparable injury or the inadequacy of other remedies as a prerequisite to the issuance of the injunction. Commodity Futures Trading Commission v. British American Commodity Options Corp., 560 F.2d 135, 141 (2nd Cir. 1977), cert. denied, 438 U.S. 905, 57 L. Ed. 2d 1147, 98 S. Ct. 3123 (1978). Congress itself has balanced the equities and ...


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