Brang Inc v. Liquor Control Commission
320 Mich. App. 652
| Mich. Ct. App. | 2017Background
- LCC investigators seized and alleged for-sale items (pipes, bongs, scales, grinders, vaporizers, etc.) at Brang, Inc.’s convenience store as "narcotics paraphernalia" under Mich Admin Code R 436.1011(6)(e). 27 charges were filed; rolling papers were later dismissed.
- Administrative hearings: a hearing commissioner found violations and imposed fines and a one-day license suspension; the LCC Appeal Board affirmed on remand by 2–1; the circuit court affirmed the Board.
- The store argued the items were tobacco accessories and contended the rule lacks a definition or standards to identify "narcotics paraphernalia." The LCC relied on investigator testimony and an LCC interpretive statement listing example items.
- The court rejected reliance on the LCC interpretive statement (not a binding rule under MCL 24.232(5)) and evaluated whether the term "narcotics paraphernalia" in the rule is unconstitutionally vague.
- The Court of Appeals held R 436.1011(6)(e) void for vagueness because it supplies no benchmarks (e.g., manufacturer intent, predominant use, vendor knowledge, or specific design) and thus permits arbitrary enforcement; it reversed and ordered dismissal of the LCC complaint.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether R 436.1011(6)(e)’s phrase "narcotics paraphernalia" is unconstitutionally vague | Term is undefined; rule gives no standards so licensees cannot know what is prohibited | Term is sufficiently clear; investigators’ experience and interpretive statement identify covered items | Held vague and void: rule lacks objective parameters and permits arbitrary enforcement |
| Whether the LCC may rely on its interpretive statement to define paraphernalia | Store: interpretive statement is advisory and not binding; cannot cure vagueness | LCC: statement clarifies examples and application | Court: interpretive statement is not a rule and cannot be used to uphold enforcement (MCL 24.232(5)) |
| Whether evidence supported findings that seized items were narcotics paraphernalia | Store: items were lawful tobacco accessories; placement/price ≠ illegal use | LCC: investigators’ training and totality-of-circumstances testimony established paraphernalia use | Court declined to assess sufficiency on merits because rule invalidated as vague; reversed enforcement |
| Proper remedy when rule is void for vagueness | Store: dismissal of charges | LCC: likely sought remand or other relief | Court ordered reversal and remand for entry of order dismissing the LCC complaint; costs to store |
Key Cases Cited
- Semaan v. Liquor Control Comm., 425 Mich. 28 (discusses judicial review of LCC decisions)
- Kotmar, Ltd. v. Liquor Control Comm., 207 Mich. App. 687 (examines vagueness challenge to an LCC rule)
- Hanlon v. Civil Serv. Comm., 253 Mich. App. 710 (standard of review for agency factual findings)
- City of Romulus v. Dep’t of Environmental Quality, 260 Mich. App. 54 (deference to agency interpretation limits)
- Allison v. City of Southfield, 172 Mich. App. 592 (vagueness doctrine and fair notice principles)
- Jacobellis v. Ohio, 378 U.S. 184 (illustrates limits of defining certain terms; "I know it when I see it")
- Michigan v. Long, 463 Mich. 1032 (background on classification of marijuana in state law)