Mike's Smoke, Cigar & Gifts v. St. George

2017 UT App 20
THE UTAH COURT OF APPEALS
M IKE’ S S MOKE, C IGAR & GIFTS,
Appellant,
v.
S T. GEORGE C ITY ,
Appellee.
Opinion
No. 20151030-CA
Filed February 2, 2017
Fifth District Court, St. George Department
The Honorable Jeffrey C. Wilcox
No. 130500429
Ryan L. Holdaway and Diane Pitcher, Attorneys
for Appellant
Bryan J. Pattison, Thomas J. Burns, Shawn M.
Guzman, and Paula J. Houston, Attorneys
for Appellee
JUDGE J. F REDERIC VOROS JR . authored this Opinion, in which
JUDGES GREGORY K. O RME and M ICHELE M. C HRISTIANSEN
concurred.
VOROS, Judge:
¶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.

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BACKGROUND
¶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
1. “K2 or ‘Spice’ is a mixture of herbs and spices that is typically
sprayed with a synthetic compound chemically similar to THC,
the psychoactive ingredient[] in marijuana. . . . K2 is commonly
purchased in head shops, tobacco shops, various retail outlets,
and over the Internet. It is often marketed as incense or ‘fake
weed.’” 	Drug 	Enforcement 	Administration, 	Drug 	Fact 	Sheet,
https://www.dea.gov/druginfo/drug_data_sheets/K2_Spice.pdf
[https://perma.cc/QG59-T899].

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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

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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

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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.
ISSUE AND STANDARD OF REVIEW
¶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
2. The basic facts of the present opinion, up until our remand in
Mike’s I, borrow heavily from our court’s prior opinion involving
the same parties (but a different procedural issue) on appeal. See
Mike’s Smoke, Cigar & Gifts v. St. George City, 2015 UT App 158,
¶¶ 1–6, 353 P.3d 626.
3. At oral argument, counsel for Mike’s also argued that the
related, but distinct, absurdity doctrine required a conjunctive
reading. Cf. Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50,
¶¶ 69–70, 267 P.3d 863 (Lee, J., dissenting). We do not consider
(continued…)

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¶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.
ANALYSIS
¶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
(…continued)
the merits of unbriefed arguments asserted by appellants for the
first time at oral argument. See Washington v. Kraft, 2010 UT App
266U, para. 12–13.

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generally Utah Code Ann. § 58-37-8 (LexisNexis 2016) (defining
the 	specific 	“prohibited 	acts” 	and 	“penalties” 	for 	defined
“controlled substances”). 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:
(g)(i) “Controlled substance analog” means:
(A) a substance the chemical structure of which is
substantially similar to the chemical structure of a
controlled substance . . . ;
(B) a substance which has a stimulant, depressant,
or 	hallucinogenic effect 	on 	the 	central 	nervous
system 	substantially 	similar 	to 	the 	stimulant,
depressant, or hallucinogenic effect on the central
nervous system of controlled substances . . . ; or
(C) A substance which, with respect to a particular
individual, is represented or intended to have a
stimulant, depressant, or hallucinogenic effect on
the central nervous system substantially similar to
the stimulant, depressant, or hallucinogenic effect
on 	the 	central 	nervous 	system 	of 	controlled
substances . . . .
Id. § 58-37-2(1)(g)(i). The parties agree that this version of the
Analog Statute controls this case. Furthermore, Mike’s conceded
below that “there is no question the legislature intended for the
[current statute] to be read in the disjunctive”—meaning that a
substance qualifies as a controlled substance analog if it satisfies
any of the statute’s three subsections—(A) it has a chemical
structure similar to a controlled substance, (B) it produces an
effect similar to a controlled substance, or (C) it is represented to
have such an effect.

Mike's Smoke, Cigar & Gifts v. St. George City
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¶16 	By contrast, under the predecessor statute, a substance
did not qualify as a controlled substance analog unless it had a
chemical structure similar to a controlled substance and had
either (A) an effect similar to a controlled substance or (B) was
represented to have such an effect:
(g)(i) “Controlled 	substance 	analog” 	means 	a
substance 	the 	chemical 	structure 	of 	which 	is
substantially similar to the chemical structure of a
controlled substance . . . :
(A) which 	has 	a 	stimulant, 	depressant, 	or
hallucinogenic effect on the central nervous system
substantially similar to the stimulant, depressant,
or 	hallucinogenic effect 	on 	the 	central 	nervous
system of controlled substances . . . ; or
(B) which, with respect to a particular individual, is
represented 	or 	intended 	to 	have 	a 	stimulant,
depressant, or hallucinogenic effect on the central
nervous 	system 	substantially 	similar 	to 	the
stimulant, depressant, or hallucinogenic effect on
the 	central 	nervous 	system 	of 	controlled
substances . . . .
Id. § 58-37-2(1)(g)(i) (LexisNexis Supp. 2011).
¶17 	Although Mike’s effectively concedes that the legislature
intended the current statute to be read in the disjunctive, it
contends that a disjunctive reading runs afoul of two canons of
statutory interpretation: the absurd consequences canon, and the
constitutional avoidance canon.
¶18 	First, Mike’s argues that a literal reading of the Analog
Statute yields absurd results. Specifically, Mike’s argues that
tobacco, energy drinks, and even monosodium glutamate could
fall 	within 	the 	Analog 	Statute’s 	definition 	of 	a 	controlled

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substance under a disjunctive reading. Second, Mike’s argues
that 	the 	canon 	of 	constitutional 	avoidance 	is 	“useful” 	here
because 	it 	counsels 	against 	adopting 	one 	of 	two 	plausible
constructions of a statute on the ground that it would raise grave
doubts as to the statute’s constitutionality.
¶19 	Our case law recognizes two different interpretive tools
concerning absurdity: the absurd consequences canon and the
absurdity doctrine. Utley v. Mill Man Steel, Inc., 2015 UT 75, ¶ 46,
357 P.3d 992 (Durrant, C.J., concurring in part and dissenting in
part). “We apply the absurd consequences canon to resolve
ambiguities in a statute. If statutory language lends itself to two
alternative readings, we choose the reading that avoids absurd
consequences.” Id. “The absurdity doctrine, by contrast, has
nothing to do with resolving ambiguities. Rather, we apply [the
absurdity doctrine] to reform unambiguous statutory language
where 	applying 	the 	plain 	language 	leads 	to 	results 	so
overwhelmingly 	absurd 	no 	rational 	legislator 	could 	have
intended them.” Id.
¶20 	“The canon of constitutional avoidance is an important
tool 	for 	identifying 	and 	implementing 	legislative 	intent. 	Its
premise is a presumption that the legislature ‘either prefers not
to press the limits of the Constitution in its statutes, or it prefers
a narrowed (and constitutional) version of its statutes to a statute
completely stricken’ by the courts.” Utah Dep’t of Transp. v.
Carlson, 2014 UT 24, ¶ 23, 332 P.3d 900 (quoting Richard L.
Hasen, Constitutional Avoidance and Anti-Avoidance by the Roberts
Court, 2009 Sup. Ct. Rev. 181, 186). “Thus, when a court rejects
one of two plausible constructions of a statute on the ground
that it would raise grave doubts as to its constitutionality, it
shows proper respect for the legislature, which is assumed to
‘legislate[ ] 	in 	the 	light 	of 	constitutional 	limitations.’” 	Id.
(alteration in original) (quoting Rust v. Sullivan, 500 U.S. 173, 191
(1991)).

Mike's Smoke, Cigar & Gifts v. St. George City
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¶21 	However, 	to 	employ 	either 	the 	absurd 	consequences
canon or the constitutional avoidance canon, we must first
identify an ambiguity in the statute. “It is well settled that when
faced with a question of statutory interpretation, our primary
goal is to evince the true intent and purpose of the Legislature.”
Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 14, 267 P.3d
863 (citation and internal quotation marks omitted). And the
“best evidence of the legislature’s intent is the plain language of
the statute itself.” Id. (citation and internal quotation marks
omitted). When the meaning of a statute “can be discerned from
its language, no other interpretive tools are needed.” Id. ¶ 15
(citation and internal quotations marks omitted); see also Utah
Republican Party v. Cox, 2016 UT 17, ¶ 7, 373 P.3d 1286 (stating
that “there is no ambiguity in [the statute] that would trigger
resort to the canon of constitutional avoidance”). Only when the
statutory 	language 	is 	ambiguous—where, 	after 	we 	have
conducted 	a 	plain 	language 	analysis, 	its 	terms 	remain
susceptible to two or more reasonable interpretations—do we
resort to other modes of statutory construction. Marion Energy,
2011 UT 50, ¶ 15.
¶22 	Mike’s maintains that “the plain language and contextual
driven analysis results in the statute being ambiguous.” Mike’s
contends that “a contextual analysis” of the Analog Statute
“lends itself to competing interpretations as to whether the ‘or’
should 	apply 	throughout.” 	However, 	Mike’s 	has 	effectively
conceded that the legislature intended the statute to be read in
the disjunctive:
Let it be said at the outset that [Mike’s] has never
argued 	the 	legislature 	ever 	intended 	anything
other than precisely what the City claims it meant.
There is no question the legislature intended for
the amended [Utah Code section] 58-37-2(1)(g) to
be 	read 	in 	the 	disjunctive. . . . [Mike’s] 	is 	not
suggesting the proper reading of the statute is in

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the conjunctive because the legislature intended it,
but rather that it must be read in the conjunctive
because the Constitution requires it.
As we read it, this statement constitutes a concession from
Mike’s that the statute is not ambiguous: it makes the intent of
the legislature clear. An appellant is “not at liberty to argue one
position below and then take the opposite position on appeal.”
Bailey-Allen Co. v. Kurzet, 945 P.2d 180, 185 (Utah Ct. App. 1997).
¶23 	In any event, like the district court, the City Council, the
City, and Mike’s below, we see no ambiguity in the statute. The
text of the Analog Statute begins with an introductory clause
stating “(g)(i) ‘Controlled substance analog’ means” followed by
a colon. Utah Code Ann. § 58-37-2(1)(g)(i) (LexisNexis 2016).
After the colon, the Analog Statute includes three subsections:
(A), (B), and (C). Id. In parallel language, each of the subsections
begins with the words “a substance,” describes the substance as
something 	which 	has 	the 	characteristics 	defined 	by 	each
subsection, and ends with a semicolon. Id. An “or” separates
subsections (B) and (C) but does not separate subsections (A)
and (B). See id. When words are used in a series connected with a
single “or” between the last two items, the “‘or’ . . . applies to the
whole series.” See Ringwood v. State, 333 P.2d 943, 944 (Utah
1959). Thus, the “or” in the Analog Statute between subsection
(B) and (C) must also apply between subsections (A) and (B). See
id. In addition, the parallel structure of the Analog Statute, the
consistent use of the term “a substance” as the subject of each
subsection, 	and 	the 	separation 	of 	each 	subsection 	with 	a
semicolon 	demonstrate 	that 	the 	legislature 	intended 	each
subsection to apply independently.
¶24 	Moreover, a comparison of the current Analog Statute to
the 	2011 	version 	(cited 	above) 	further 	demonstrates 	our
legislature’s 	intent 	to 	change 	the 	Analog 	Statute 	from 	a
conjunctive definition—requiring A and either B or C—to a

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disjunctive definition—requiring A or B or C. Specifically, the
current 	Analog 	Statute’s 	removal 	of 	the 	colon 	after 	its
description of the chemical structure of a substance, moving the
chemical structure material from the heading of the statute into
its own subsection, and drafting each of the three subsections in
parallel 	language 	shows 	that 	the 	legislature 	intended 	the
definition to be read in the disjunctive—satisfied if any of the
three subsections were met. Compare Utah Code Ann. § 58-37-2
(LexisNexis Supp. 2011), with id. (2016).4
¶25 	Because the text of the Analog Statute is unambiguous—
that is, susceptible to only one plausible reading—we do not
resort to other modes of statutory construction, such as the
absurd 	consequences 	canon 	or 	the 	constitutional 	avoidance
canon. See Marion Energy, 2011 UT 50, ¶ 15.5
4. Mike’s places considerable reliance on federal cases construing
the federal counterpart to our Analog Statute. However, each of
those cases relies, or follows precedent that relies, on a threshold
determination that the federal statute is ambiguous. Because the
federal statute varies somewhat from our statute, and because,
unlike the federal statute, our statute is not ambiguous, those
cases lack persuasive force. See United States v. Turcotte, 405 F.3d
515, 522 (7th Cir. 2005), abrogated on other grounds by McFadden v.
United States, 135 S. Ct. 2298 (2015); United States v. Hodge, 321
F.3d 429, 436 (3d Cir. 2003); United States v. Klecker, 228 F. Supp.
2d 720, 727 (E.D. Va. 2002) (collecting cases).
5. Mike’s does not ask us in its briefing on appeal, see supra ¶ 11
note 3, to take the “drastic step” of invoking the absurdity
doctrine on the ground that the “plain language leads to results
so overwhelmingly absurd no rational legislator could have
intended them.” Utley v. Mill Man Steel, Inc., 2015 UT 75, ¶¶ 46,
48, 357 P.3d 992 (Durrant, C.J., concurring in part and dissenting
in part). But even considering that doctrine, we would follow the
(continued…)

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CONCLUSION
¶26 	Because 	the 	district 	court 	correctly 	read 	the 	Analog
Statute according to its plain meaning, the judgment of the
district court is affirmed.
(…continued)
approach our supreme court took in In re Z.C., 2007 UT 54, 165
P.3d 1206. There, the court analyzed the absurd results question
“in the context of the law actually applied and the act with
which the State chose to charge Z.C., not the law that might have
been applied or the act with which the State could have charged
Z.C.” Id. ¶ 17 n.6. And it concluded that “applying the plain
language of the statute in this case produces an absurd result.” Id.
¶ 17 (emphasis added). And even Mike’s does not argue that
applying the plain meaning of the Analog Statute to the facts of
this case yields an absurd result. Nor do we believe it does.
And as in the district court, Mike’s “is not challenging the
constitutionality of the statute.” Instead, Mike’s urges us to
apply the canon of constitutional avoidance. But here “there is
no ambiguity in [the statute] that would trigger resort to the
canon of constitutional avoidance.” See Utah Republican Party v.
Cox, 2016 UT 17, ¶ 7, 373 P.3d 1286.