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Court Rules "Narcotics Paraphernalia" Language Unconstitutionally Vague


Case: Brang, Inc. v. Liquor Control Comm'n

Court: Michigan Court of Appeals ( Published Opinion )

Issues: Rule prohibiting an establishment licensed by the Liquor Control Commission (LCC) from allowing “narcotics paraphernalia” on the premises; MI Admin. Code, R 436.1011(6)(e); Construction of administrative rules; City of Coldwater v. Consumers Energy Co.; MCL 8.3 & 8.3a; Deference to the agency’s construction; City of Romulus v. Department of Envtl. Quality; The Administrative Procedures Act (MCL 24.201 et seq.); MCL 24.232(1) & (5); Identifying merchandise or products that constitute narcotics paraphernalia; Effect of the LCC’s interpretative statement; MCL 24.207(h); Whether Rule 436.1011(6)(e) was unconstitutionally vague; Kotmar, Ltd. v. Liquor Control Comm’n; Vagueness challenges to rules not involving First Amendment freedoms; Ron’s Last Chance, Inc. v. Liquor Control Comm’n; Due process requirement for reasonably precise standards; Adkins v. Department of Civil Serv.; Allison v. City of Southfield; Michigan Waste Sys. v. Department of Natural Res.; Treating “narcotics paraphernalia” as effectively being interchangeable with “drug paraphernalia”; The Michigan Medical Marihuana Act (MCL 333.26421 et seq.); Contrasting the Public Health Code (PHC) statutes outlawing the sale of drug paraphernalia; MCL 333.7453(1) & 333.7451


The court held that the Rule prohibiting an establishment licensed by the defendant-LCC from allowing “narcotics paraphernalia” on the premises was unconstitutionally vague and thus, void and unenforceable by the LCC. It reversed the circuit court’s order affirming the LCC’s ruling against the plaintiff, and remanded for entry of an order dismissing the LCC complaint against plaintiff. Rule 436.1011(6)(e) prohibits an LCC-licensed establishment from “[a]llow[ing] narcotics paraphernalia to be used, stored, exchanged, or sold on the licensed premises.” The court held that “the term ‘narcotics paraphernalia,’ standing alone as it does” in the Rule without any parameters, was unconstitutionally vague. It noted that the LCC’s interpretative statement could not be relied on or utilized as an “interpretative statement is not a rule.” The court concluded that the Rule was “too vague for purposes of fair enforcement, and reasonably precise standards” can be drafted “in a promulgated rule to avoid the vagueness problem.” The court noted that it was “problematic and confusing that the LCC treats the term ‘narcotics paraphernalia’ as effectively being interchangeable with the term ‘drug paraphernalia,’ such that the LCC necessarily views marijuana paraphernalia as” in violation of the Rule. The primary reason the court held that the Rule was unconstitutionally vague was it failed “to supply any parameters, guidance, standards, criteria, or quantifiers in regard to identifying ‘narcotics paraphernalia,’ other than those necessarily arising out of the term itself, thereby making it susceptible to arbitrary and discriminatory enforcement.” It contrasted the statutes “outlawing the sale of drug paraphernalia under the PHC,” noting that no “such precision is found in Rule 436.1011(6)(e).” There was no guidance or criteria for determining, “for example, whether a pipe that can actually be used to smoke tobacco and to smoke a narcotic drug constitutes narcotics paraphernalia, thereby causing persons of common intelligence to guess at whether the pipe violates the rule.”

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