The Michigan Court of Appeals reversed a trial court holding that the Tobacco Products Tax Act is unconstitutionally vague and overbroad. In People v. Assy, No. 326274, the Court of Appeals found that the statute, MCL 205.421 et seq., is unambiguous and provides people of ordinary intelligence reasonable notice of what is prohibited, the standard for determining that the statute passes constitutional muster.
Defendant, the store manager of a tobacco business, was charged with two counts of “possessing, acquiring, transporting, or offering for sale tobacco products other than cigarettes . . . without a license” and another count for “possessing, acquiring, transporting, or offering for sale tobacco products other than cigarettes . . . without proper invoices,” following two inspections of the business. MCL 205.426 requires a retailer to keep proper documentation of tobacco sales, and MCL 205.422(q) defines a retailer as someone who “operates a place of business for the purpose of making sales of a tobacco product at retail.” When the defendant moved to dismiss the charges, the trial court granted the dismissal on the basis that the statute was vague and overbroad, because the definition of retailer could include a “seventeen year old selling those cigarettes” and the trial court did not “think that was the intent of the legislature whatsoever.” The Court of Appeals first noted that the lower court did not explain why the statute would be unconstitutional if it did apply to a seventeen year old cashier, but then the Court of Appeals addressed that concern by pointing to the ordinary definition of “to operate” and finding that the definition of retailer as someone who “operates a place of business” only applies to a person who directs or manages the business, and therefore does not include a seventeen year old cashier. Because the trial court erred in finding the statute unconstitutional, the Court of Appeals reversed the dismissal of charges and remanded for further proceedings.
