Mike's Smoke, Cigar & Gifts v. St. George City
| Decision Date | 02 February 2017 |
| Docket Number | No. 20151030-CA,20151030-CA |
| Citation | 391 P.3d 1079 |
| Parties | MIKE'S SMOKE, CIGAR & GIFTS, Appellant, v. ST. GEORGE CITY, Appellee. |
| Court | Utah Court of Appeals |
Ryan L. Holdaway and Diane Pitcher, Logan, Attorneys for Appellant.
Bryan J. Pattison, St. George, Thomas J. Burns, Salt Lake City, Shawn M. Guzman, and Paula J. Houston, West Valley, Attorneys for Appellee.
Opinion
¶1 Mike's Smoke, Cigar & Gifts appeals the district court's decision affirming the St. George City Council's revocation of its business license for selling a controlled substance analog, a synthetic cannabinoid commonly known as spice. On appeal, Mike's contends that the district court incorrectly interpreted the Controlled Substance Analog statute. We affirm.
¶2 Mike's is a retail business located in St. George, Utah, and licensed by the City to sell cigarettes and other tobacco-related products. Between March 2012 and January 2013, the Washington County Drug Task Force investigated Mike's for suspected distribution of a controlled substance commonly known as spice.1 Employees of the store told Task Force agents that, because spice was illegal, they did not sell it, but they did sell "aroma therapy" products. In two undercover buys, Task Force agents purchased an aroma therapy product that was sold in packets labeled "Reborn."
¶3 Suspecting that Reborn was a controlled substance, the Task Force obtained and executed a search warrant against Mike's. While executing the warrant, a detective interviewed the store manager, who is the son of one of the store's owners. When questioned about the legality of Reborn, the store manager told the detective that the product had been tested and that Mike's had consulted with its attorney before selling Reborn. The store manager or one of the owners stated that Mike's purchased Reborn from a man they knew only by his first name. The store manager told the detective that he sells Reborn only to customers nineteen years of age or older and that they must ask for it by name. He also told the detective that he tells customers that they will go to jail if they smoke it. However, the store manager admitted that he knew many of his customers did smoke Reborn. And his sister had seen customers smoking it in the parking lot. According to the store manager, sales of Reborn comprised over 30% of the store's daily sales.
¶4 The Task Force made at least three more undercover buys of Reborn. On each occasion, Mike's had stored the Reborn behind the counter, out of public view. The Reborn was sold in packets without a barcode. Instead of scanning a barcode on the Reborn itself, store employees scanned a barcode on the side of the cash register to enter its price. Following the second round of undercover buys, the Task Force obtained and executed a second search warrant, seizing multiple packets of Reborn from behind the counter and from a safe in the back room. The store owner was again interviewed; when asked if the names "Reborn" and "aroma therapy" were camouflage to skirt law enforcement, he responded, "Yeah."
¶5 The Utah Bureau of Forensic Services (the State Crime Lab) tested the seized Reborn and determined that it contained a chemical substance called XLR11. XLR11 is a chemical analog to a controlled substance, AM-694, sometimes called synthetic marijuana. See Utah Code Ann. § 58–37–4.2(6) (LexisNexis 2016); Drug Enforcement Administration, Drugs of Abuse 16 (2015), https://www.dea.gov/pr/multimedia-library/publications/drug_of_abuse.pdf, [https://perma.cc/37TB-G8A8]. After learning of the test results, the City revoked the shop's business license and ordered it to cease operating within the City. Mike's appealed the license-revocation order and requested a hearing before the St. George City Council.
¶6 At the City Council hearing, the City argued that Mike's violated Utah law by selling a controlled substance as defined by the Controlled Substance Analog Statute (the Analog Statute). Utah Code Ann. § 58–37–2(1)(g)(i) (LexisNexis 2016). The City presented three State Crime Lab reports (one from each test of the seized Reborn) showing that the samples contained XLR11. The reports, signed by the State Crime Lab forensic scientist who tested each of the samples, explained that XLR11 has a substantially similar chemical structure to a listed controlled substance, AM-694. The reports concluded that XLR11 was thus a "structural analog" of AM-694, a controlled substance. Mike's responded that XLR11 was not a "structural analog" of AM-694. Mike's presented the City Council with two expert opinion letters. In the first opinion letter, a chemist opined that XLR11 is "substantially structurally different" from AM-694 and therefore is not a structural analog of AM-694. In the second opinion letter, a second chemist opined that XLR11 should not be considered an analog of AM-694. Neither chemist had tested the Reborn.
¶7 Based on the evidence at the hearing, the City Council found that Mike's sold a product containing XLR11; that XLR11 is an analog of a controlled substance, AM-694; and that Mike's "sold and possessed product with the intent to distribute" in violation of Utah Code section 58–37–8 (LexisNexis 2016). Thus, the City Council upheld the revocation of the store's business license and ordered it to cease conducting business within the City.
¶8 Mike's petitioned the district court for judicial review of the City Council's decision. In the petition, Mike's claimed that the City Council's decision was not supported by substantial evidence and that the definition of a controlled substance under the Analog Statute was unconstitutionally vague. See id. § 58–37–2(1)(g) (LexisNexis 2016) (defining "controlled substance analog"). The City responded that the City Council had correctly interpreted the Analog Statute, that the statute was constitutional, and that substantial evidence in the administrative record supported the City Council's revocation decision.
¶9 The district court remanded the matter back to the City Council to take testimony from both parties' experts. The evidentiary hearing was necessary, the district court ruled, because "there [was] a disputed issue of fact as to whether the substance ‘Reborn’ ha[d] a substantially similar chemical structure to a controlled substance analog." The district court did not reach the merits of the Analog Statute's constitutionality. The City appealed the order, contending that the district court had applied the wrong standard of review. We agreed and remanded the case for further proceedings. See Mike's Smoke, Cigar & Gifts v. St. George City (Mike's I) , 2015 UT App 158, ¶¶ 15–16, 353 P.3d 626.2
¶10 On remand, the district court affirmed the City Council's decision to revoke the business license. It ruled that "based on ‘the evidence in the record, both favorable and contrary,’ the court determines that ‘a reasonable mind could reach the same conclusion’ " as the City Council. Hence, the district court upheld the City Council's license-revocation decision. Mike's appeals.
¶11 Mike's contends that the district court misinterpreted the Controlled Substance Analog Statute. Specifically, it argues that the Analog Statute "should be read in the conjunctive to avoid absurd results and valid constitutional challenges."3
¶12 "We review questions of statutory interpretation for correctness, giving no deference to the district court's interpretation." Board of Educ. of Jordan School Dist. v. Sandy City Corp. , 2004 UT 37, ¶ 8, 94 P.3d 234.
¶13 Mike's contends that the district court erred by applying a disjunctive rather than conjunctive interpretation of the Analog Statute. The Analog Statute, which defines a controlled substance, contains three subsections: (A), (B), and (C). Under the conjunctive reading preferred by Mike's, to qualify as a controlled substance analog, a substance must satisfy the definition listed in subsection (A) and the definition listed in either subsection (B) or subsection (C). Under the disjunctive reading preferred by the City and applied by the district court, to qualify as a controlled substance analog, a substance must satisfy the definition listed in any of the three subsections of the Analog Statute—subsection (A), or subsection (B), or subsection (C).
¶14 Mike's argues that a conjunctive reading of the Analog Statute is necessary under two canons of statutory interpretation: absurd consequences and constitutional avoidance. The City responds that, because a disjunctive reading is the only plausible reading of the statute, the statute is unambiguous, and thus no canon of construction applies.
¶15 The Utah Controlled Substances Act criminalizes the possession, sale, or use of any "controlled substance." See generally Utah Code Ann. § 58–37–8 (LexisNexis 2016) (). The Act defines "controlled substance" to include "a controlled substance analog." Id. § 58–37–2(1)(f)(i)(C). The current version of the Act defines a "controlled substance analog" using a three-part definition:
Id. § 58–37–2(1)(g)(...
To continue reading
Request your trial
-
Bevan v. State
...that the legislature's use of "or" mandates alternative options); Mike's Smoke, Cigar & Gifts v. St. George City , 2017 UT App 20, ¶ 24, 391 P.3d 1079. Accordingly, the Section 106(1)(d) procedural bar applies if (1) the petitioner previously "raised" an issue for post-conviction review, (2......
-
Bevan v. State
...that the legislature's use of "or" mandates alternative options); Mike's Smoke, Cigar & Gifts v. St. George City, 2017 UT App 20, ¶ 24, 391 P.3d 1079. Accordingly, the 106(1)(d) procedural bar applies if (1) the petitioner previously "raised" an issue for post-conviction review, (2) the pet......
-
Bevan v. State
...that the legislature's use of "or" mandates alternative options); Mike's Smoke, Cigar & Gifts v. St. George City, 2017 UT App 20, ¶ 24, 391 P.3d 1079. Accordingly, the 106(1)(d) procedural bar applies if (1) the petitioner previously "raised" an issue for post-conviction review, (2) the pet......
- Patterson v. Knight