WAYNE GAUTHIER V ALPENA CNTY PROSECUTOR
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STATE OF MICHIGAN
COURT OF APPEALS
WAYNE GAUTHIER, d/b/a CONCERT
CONNECTION,
FOR PUBLICATION
June 28, 2005
9:05 a.m.
Plaintiff-Appellant,
v
No. 253200
Alpena Circuit Court
LC No. 03-003317-AZ
ALPENA COUNTY PROSECUTOR,
Defendant-Appellee.
Official Reported Version
Before: Murray, P.J., and O'Connell and Donofrio, JJ.
PER CURIAM.
Plaintiff appeals as of right a declaratory judgment in which the trial court declared that
certain items offered for sale at plaintiff 's business constitute "drug paraphernalia" under MCL
333.7451, and were sold or offered for sale in violation of MCL 333.7453(1). We affirm in part
and reverse in part.
Plaintiff is the owner and operator of a small business called Concert Connection, which
is located in Alpena. Concert Connection offers a variety of items for sale, including hats, Tshirts, wall hangings, black-light hangings, pipes, patches, stickers, posters, and rock and roll
memorabilia. In February 2003, Michigan State Police Detective Sergeant Robert Hahn, who
was assigned to an undercover narcotics team, investigated plaintiff 's business and observed
items that he believed to be drug paraphernalia being offered for sale. Thereafter, pursuant to
MCL 333.7453(2), the Alpena County Prosecuting Attorney sent plaintiff written notice
informing him that various products offered for sale at Concert Connection constituted drug
paraphernalia under MCL 333.7451, that MCL 333.7453 prohibits the sale of drug paraphernalia,
and that he would be arrested if he did not refrain from selling such items. A second letter from
the Alpena County Prosecuting Attorney's office to plaintiff specifically described the items
plaintiff was allegedly selling in violation of MCL 333.7453 as all pipes and instruments used for
smoking marijuana, including "dugouts," "one-hitters," water pipes (commonly referred to as
"bongs"), and "bowls," handheld metallic scales, cocaine kits, "bullets," "snorters," and small
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spoons, with or without a chain and glass vial attached, that are used to snort controlled
substances.
Plaintiff filed an action seeking a declaratory judgment1 regarding the legality of the
items he was offering for sale at his store. Specifically, plaintiff sought a ruling regarding
whether the items constituted drug paraphernalia under MCL 333.7451 or whether the items
were exempt from the definition of "drug paraphernalia" under MCL 333.7457(d) and (e). After
conducting a hearing on the matter, the trial court issued a declaratory judgment. The trial court
determined that the handheld metallic scales identified by the prosecutor did not constitute drug
paraphernalia under MCL 333.7451. However, the trial court determined that certain other items
that plaintiff offered for sale at his store, including pipes constructed from glass, stone and metal
with a metal screen filter, bongs (with or without an attached rubber face mask), dugouts, and
cocaine bullets constituted drug paraphernalia under MCL 333.7451, and were not exempt under
MCL 333.7457.
Plaintiff 's appeal requires this Court to interpret certain provisions of the controlled
substances act, which is article 7 of the Public Health Code, MCL 333.7101 et seq. The
interpretation of statutes involves a question of law, which we review de novo. Eggleston v BioMedical Applications of Detroit, Inc, 468 Mich 29, 32; 658 NW2d 139 (2003). This Court
reviews a trial court's decision to grant or deny declaratory relief for an abuse of discretion. See
Allstate Ins Co v Hayes, 442 Mich 56, 74; 499 NW2d 743 (1993).
MCL 333.7453(1) prohibits the sale of drug paraphernalia. A person who is convicted of
selling drug paraphernalia under MCL 333.7453 is guilty of a misdemeanor. MCL 333.7455.
"Drug paraphernalia" is defined by MCL 333.7451 as
any equipment, product, material, or combination of equipment, products, or
materials, which is specifically designed for use in planting; propagating;
cultivating; growing; harvesting; manufacturing; compounding; converting;
producing; processing; preparing; testing; analyzing; packaging; repackaging;
storing; containing; concealing; injecting, ingesting, inhaling, or otherwise
introducing into the human body a controlled substance; including, but not limited
to, all of the following:
* * *
(c) A weight scale or balance specifically designed for use in weighing or
measuring a controlled substance.
* * *
1
A person who receives written notice under MCL 333.7453(2) that he or she is in possession of
material that has been determined to be drug paraphernalia under MCL 333.7451 "may
commence an action for a declaratory judgment to obtain an adjudication of the legality of the
intended sale or offer to sell." MCL 333.7459(1).
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(f) An object specifically designed for use in ingesting, inhaling, or
otherwise introducing marihuana, cocaine, hashish, or hashish oil into the human
body.
* * *
(i) A device, commonly known as a cocaine kit, that is specifically
designed for use in ingesting, inhaling, or otherwise introducing controlled
substances into the human body, and which consists of at least a razor blade and a
mirror.
(j) A device, commonly known as a bullet, that is specifically designed to
deliver a measured amount of controlled substances to the user.
(k) A device, commonly known as a snorter, that is specifically designed
to carry a small amount of controlled substances to the user's nose.
* * *
(m) A spoon, with or without a chain attached, that has a small diameter
bowl and that is specifically designed for use in ingesting, inhaling, or otherwise
introducing controlled substances into the human body.
MCL 333.7457 exempts certain items from the prohibition on the sale of drug
paraphernalia. The relevant exemption under the facts of this case is contained in MCL
333.7457(d), which provides that "[e]quipment, a product, or material which may be used in the
preparation or smoking of tobacco or smoking herbs other than a controlled substance" is exempt
from the definition of "drug paraphernalia." (Emphasis added.)2
Plaintiff argues that the trial court erred in concluding that certain items offered for sale
at his store constituted drug paraphernalia under MCL 333.7451 because they were not
"specifically designed" for the uses listed in MCL 333.7451. We disagree. We affirm the trial
court's conclusion that the items in question are drug paraphernalia because these items are
specifically designed for the uses listed in MCL 333.7451. Historical uses dictate that such items
as a bong, a dugout, and a cocaine bullet are "specifically designed" to introduce a controlled
substance into the human body. Notwithstanding the fact that the pipes, bongs, and dugouts are
"specifically designed" to introduce a controlled substance into the human body, however, we
note that such items "may be used in the preparation or smoking of tobacco or smoking herbs
other than a controlled substance," and therefore are exempt from the definition of "drug
2
The problem with the statute is that even if each item were designed solely for the purpose of
introducing a controlled substance into the human body, it would still be exempt if it "may be
used" in the preparation and smoking of tobacco. We note the obvious: any item that is used to
smoke marijuana may be used to smoke tobacco. The statute itself does not require that it be
used to smoke tobacco, only that it "may be" used to smoke tobacco.
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paraphernalia" under MCL 333.7457(d).3 The trial court erred when it failed to apply the
exemption.
Although the trial court ultimately held that the pipes, bongs, and dugouts that plaintiff 's
store offered for sale were not exempt from the definition of "drug paraphernalia," the trial court
correctly observed that, under the plain language of MCL 333.7457(d), the pipes, bongs, and
dugouts would be exempt because, "due to the similarity in the nature of tobacco and marijuana,
it is within the realm of possibility that bongs, the pipes identified by this Court as drug
paraphernalia, and dug-outs may be used in the legal preparation or smoking of tobacco or
herbs." However, the trial court concluded that a plain reading of the exemption contained in
MCL 333.7457(d) "would render the drug paraphernalia statute meaningless."4 Therefore, in an
attempt to give effect to all provisions of the controlled substances act, the trial court interpreted
"the term 'may' to refer to the likelihood that such items will be used to smoke tobacco, rather
than the ability of a person to use such items to smoke tobacco." Using its interpretation of the
term "may," the trial court concluded that there was "'essentially no likelihood whatsoever'" that
the pipes, bongs, and dugouts were being used to smoke tobacco and therefore ruled that the
pipes, bongs, and dugouts were not exempt under MCL 333.7457(d).
We laud the trial court's creative attempt to make sense of an exemption that, at best, is
puzzling, and, at worst, creates a substantial loophole that effectively swallows the definition of
"drug paraphernalia" in MCL 333.7451. On the one hand, MCL 333.7451 broadly defines "drug
paraphernalia" as "[a]ny equipment, product, [or] material . . . which is specifically designed for
use in . . . . introducing into the human body a controlled substance . . . ." On the other hand, the
exemption contained in MCL 333.7457(d), which exempts any product or material that "may be
used" to smoke tobacco, herbs, or something other than a controlled substance, is itself so broad
that it nearly consumes the definition of "drug paraphernalia" contained in MCL 333.7451 and
effectively creates a loophole that could result in legalizing the sale of many items that do, in
fact, constitute drug paraphernalia.
While we appreciate the difficult task faced by the trial court in attempting to rectify
these two impossibly inconsistent statutes, we nevertheless hold that the trial court erred by
concluding that the pipes, bongs, and dugouts were not exempt under MCL 333.7457(d). The
language of MCL 333.7457(d) plainly exempts "[e]quipment, a product, or material which may
be used in the preparation or smoking of tobacco or smoking herbs other than a controlled
substance." (Emphasis added.) As used in this context, the term "may" is "used to express
possibility . . . ." Random House Webster's College Dictionary (1997). See also Black's Law
Dictionary (8th ed) (defining the term "may" as "[t]o be a possibility"). As the trial court
correctly observed, because of the similar nature of marijuana or hashish and tobacco or herbs, it
3
Regarding the cocaine bullet, we observe that MCL 333.7451(j) specifically includes a "bullet"
in the definition of "drug paraphernalia," so we agree with the trial court's conclusion that the
cocaine bullets described by the investigating officer constituted drug paraphernalia.
4
We agree with the trial court that, regarding these items, the exemption consumes the statute
and renders the statute, for the most part, meaningless.
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is possible to use a pipe, bong, or dugout to smoke tobacco or herbs that are not controlled
substances. Indeed, the prosecutor's only witness testified that the Smoke Stopper, water pipe,
and onyx pipe admitted as exhibits could be used for smoking tobacco. Therefore, we hold that
under the plain language of MCL 333.7457(d), the pipes, bongs, and dugouts offered for sale at
plaintiff 's business are exempt from the definition of "drug paraphernalia."
The trial court's statements on the record and in its opinion imply that its decision was
based, at least in part, on the rule of statutory construction that disfavors a literal interpretation of
statutory language when that interpretation would lead to an absurd result. See Jennings v
Southwood, 446 Mich 125, 133; 521 NW2d 230 (1994); Houghton Lake Area Tourism &
Convention Bureau v Wood, 255 Mich App 127, 142-143; 662 NW2d 758 (2003). We concede
that the result in this case is absurd. However, the absurd result rule applies only when statutes
are ambiguous, Houghton Lake, supra at 143, and in this case, while MCL 333.7451 and MCL
333.7457(d) are not consistent, the language used by the Legislature in both statutes is clear and
unambiguous. Moreover, the Legislature, not this Court, created and enacted this absurdity, and
we decline to invade the province of the Legislature and engage in "judicial lawmaking" when
the Legislature has spoken on this issue. In our view, the language used by the Legislature in
both MCL 333.7451 and MCL 333.7457(d) is plain and unambiguous even though the statutes,
when read together, are completely incongruent. "[T]he lawmaking power is reposed in the
people as reflected in the work of the Legislature, and, absent a constitutional violation, the
courts have no legitimacy in overruling or nullifying the people's representatives." Robinson v
Detroit, 462 Mich 439, 467; 613 NW2d 307 (2000). Rather than usurp the authority of the
Legislature to make laws, we leave it to the Legislature to reconsider the language used in MCL
333.7451 and MCL 333.7457(d) and make appropriate amendments to those statutes to eliminate
this loophole and give MCL 333.7451 the teeth it needs to enable it to appropriately limit the sale
of drug paraphernalia in the state of Michigan.
In sum, we reverse the trial court's holding that the pipes, bongs, and dugouts were not
exempt from the definition of "drug paraphernalia" under MCL 333.7457(d). In all other
respects, we affirm the declaratory judgment issued by the trial court.
Affirmed in part and reversed in part.
/s/ Christopher M. Murray
/s/ Peter D. O'Connell
/s/ Pat M. Donofrio
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