author: Allen, P.J. T. M. Burns, J.,

text:
    BUNDO v LIQUOR CONTROL COMMISSION BUNDO v OAKLAND COUNTY PROSECUTOR
    Docket Nos. 78-2272, 78-2744.
    Submitted June 14, 1979, at Lansing.
    Decided August 20, 1979.
    Leave to appeal denied, 407 Mich 900.
    Plaintiffs, Ben Bundo, Sr., and Ben Bundo, Jr., are the owners and operators of the Camelot Inn in the City of Walled Lake. Camelot Inn is an establishment licensed by the defendant Liquor Control Commission to sell liquor by the glass. The Liquor Control Commission adopted a regulation prohibiting exhibitions of nudity, either live or electronically reproduced, in establishments licensed to sell liquor by the glass. Prior to the adoption of the rule plaintiffs allowed topless and bottomless dancing at the Camelot Inn, and they continued to allow nude dancing afterwards. Plaintiffs filed a complaint in the Oakland Circuit Court against the Liquor Control Commission to declare the rule unconstitutional. Prior to a decision in that case a squad made up of officers from the Michigan State Police Department, Walled Lake City Police Department and the Oakland County Prosecutor’s Office raided the Camelot Inn. Plaintiffs filed a complaint against the various law enforcement agencies for an injunction prohibiting the authorities from attempting to initiate further criminal proceedings based upon violation of the Liquor Control Commission rule against nudity pending the outcome in the declaratory judgment action. The trial court, Richard D. Kuhn, J., in the former case, declared the rule to be constitutional and, in the latter case, denied injunctive relief. Plaintiffs appealed and the cases were consolidated. Held:

    1. The Michigan obscenity statutes have not divested the Liquor Control Commission of the power to prohibit displays of nudity by its on-premises licensees.
    2. A regulation of the Liquor Control Commission prohibiting displays of nudity by its on-premises licensees is not violative on its face of the First and Fourteenth Amendment protections and is not an ex post facto law.

      References for Points in Headnotes

       45 Am Jur 2d, Intoxicating Liquors § 285.
    Topless or bottomless dancing or similar conduct as offense. 49 ALR3d 1084.

       45 Am Jur 2d, Intoxicating Liquors § 26.

       45 Am Jur 2d, Intoxicating Liquors § 191.

      3. The Michigan Constitution allowed the Legislature to establish a Liquor Control Commission which shall exercise complete control, subject to statutory limitations, of the alcoholic beverage traffic within the state, including retail sales, and the fact that the Legislature has not, in its discretion, chosen to limit the scope of the constitutional delegation of power violates no constitutional proscription.
    Affirmed.
    T. M. Burns, J., concurred in the reasoning of the Court. However, in oral argument, plaintiffs requested that their license be returned upon assurances that they would comply with the regulations of the Liquor Control Commission. He would retain jurisdiction to allow plaintiffs time to make a proper motion so that the Court of Appeals could determine whether they are entitled to have their license restored.
    Opinion of the Court
    1. Obscenity — Intoxicating Liquors — Statutes — Liquor Control Commission — Regulation — Divestment.
    The Michigan obscenity statutes have not divested the Liquor Control Commission of the power to prohibit displays of nudity by its on-premises licensees (MCL 750.343 et seq.; MSA 28.575[1] et seq.).

      2. Intoxicating Liquors — Obscenity — Liquor Control Commission — Regulation — Constitutional Law.
    A regulation of the Liquor Control Commission prohibiting certain displays of nudity by its on-premises licensees is not violative on its face of the First and Fourteenth Amendment protections and is not an ex post facto law (1977 AACS R 436.37).
    3. Intoxicating Liquors — Liquor Control Commission — Delegation of Power — Constitutional Law.
    The Michigan Constitution allows the Legislature to establish a Liquor Control Commission which shall exercise complete control, subject to statutory limitations, of the alcoholic beverage traffic within the state, including retail sales, and the fact that the Legislature has not, in its discretion, chosen to limit the scope of the constitutional delegation of power violates no constitutional proscription.

      4, Appeal and Error — Court Rules — Intoxicating Liquors — Liquor Licenses.

      The Court of Appeals may not consider a motion, made during oral argument, for the return of a liquor license upon assurance of future compliance with the rules of the Liquor Control Commission; however, it does have the power to retain jurisdiction to allow a party an opportunity to ñle a formal motion for the return of the license (GCR 1963, 820.1).

      Paul G. Valentino, J.D., P.C., for plaintiffs.

      Frank J. Kelley, Attorney General, Robert A, Derengoski, Solicitor General, and A, C. Stoddard and Richard I. Rubin, Assistants Attorney General, for defendant Liquor Control Commission, and Thomas A. Kulick, Assistant Attorney General, for defendant Michigan State Police Department.
    L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Lawrence J. Bunting, Assistant Prosecuting Attorney, for defendants Oakland County Prosecutor and Assistant Oakland County Prosecutor.

      Brennan & Bibeau, P.C, (by Richard J. Poehlman), for defendant Walled Lake Police Department.
    Before: Allen, P.J., and T. M. Burns and D. E. Holbrook, JJ.

       Former Court of Appeals judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968,

   Allen, P.J.

Are rules of the Michigan Liquor Control Commission prohibiting topless and bottomless dancing valid, constitutional exercise^ of the state’s police power or do they violate the First or Fourteenth Amendment of the United States Constitution? The trial court held such rules valid and plaintiffs appeal of right.

Plaintiffs are the owners and operators of the Camelot Inn in the city of Walled Lake, Oakland County, Michigan, an establishment licensed to sell liquor by the glass by the Michigan Liquor Control Commission. On October 14, 1977, the Liquor Control Commission adopted rules and regulations prohibiting on-premises licensees from allowing nudity or performing explicit sexual activities on the premises. Rule 436.37 provides as follows:

"R436.37. Nudity prohibited; applicability to electronic reproduction.
"Rule 37.(1) An on-premise licensee shall not suffer or allow in or upon the licensed premises a person who exposes to public view the pubic region, anus, or genitals, as well as other types of nudity prohibited by statute or local ordinance.
"(2) An on-premise licensee shall not suffer or allow in or upon the licensed premises the showing of films, television, slides, or other electronic reproduction depicting scenes wherein any person exposes to public view the pubic region, anus, or genitals, as well as other types of nudity prohibited by statute or local ordinance. This prohibition shall not apply to any publicly broadcast television transmission from a federally licensed station.” 1977 AACS R 436.37.

For more than two years prior to the adoption of rule 37.(1) plaintiffs had permitted topless and bottomless dancing on the premises. Subsequent to the adoption of the rules, nude dancing by female entertainers continued and, on December 14, 1977, a complaint was issued against plaintiffs alleging plaintiffs violated Rule 436.37 by permitting three female entertainers to dance in the altogether on the premises. Hearing on the complaint was scheduled for January 30, 1978, but on January 20, 1978, plaintiffs filed a complaint for declaratory judgment in the Circuit Court in Oakland County, alleging that Rule 436.37 was unconstitutional, said action being docket #78-2272.

On May 24, 1978, while decision on the merits of the complaint for declaratory judgment was pending, a combined squad of officers from the Michigan State Police, the Walled Lake City Police Department, and the Oakland County Prosecutor’s Office "raided” the Camelot Inn arresting all of the dancers present, the bar manager, the cashier and the parking lot attendant. Claiming harassment, plaintiffs petitioned the trial court for a restraining order enjoining the police authorities from attempting to enforce Rule 436.37 pending decision by the trial court. When that petition was denied on grounds that the respective law enforcement agencies were not agents of the defendant Liquor Control Commission, plaintiffs filed a separate complaint in the Circuit Court of Oakland County naming the various law enforcement agencies as defendants. That action is this Court’s docket #78-2744.

On June 6, 1978, the Camelot Inn was again raided by the combined forces of the several police agencies and two female dancers were arrested. On June 12, 1978, the trial court issued a declaratory judgment in docket #78-2272, holding the challenged rule of the Liquor Control Commission to be on its face constitutionally valid. On June 13, 1978, the trial judge issued his final order denying a restraining order in docket #78-2744, for the reason that declaratory judgment in the first case made the relief prayed for in the second action moot. Plaintiffs appealed both cases to this Court, which ordered the cases consolidated.

Although plaintiffs raise seven issues on appeal, we find there is basically but one issue, that issue being whether Rule 436.37 of the Liquor Control Commission is a valid, constitutional exercise of the police power of the State of Michigan. Except for two issues of minor importance, the remaining issues are subdivisions of the charge of unconstitutionality and will fail if the rule is held constitutional.

We reject the charge that the Michigan statutes on obscenity, MCL 750.343a et seq.; MSA 28.575(1) et seq., have preempted the power of the Liquor Control Commission to issue regulations governing conduct in licensed establishments. The doctrine of preemption is different from and should not be confused with divestment. Preemption may occur where there is a conflict between the statutes or regulations of the state and Federal government or where the state and a municipality each regulate the same activity. 2 Am Jur 2d, Administrative Law, §§ 211-218, pp 39-48. Michigan’s obscenity statutes concern the distribution of obscene films and printed material. Rule 436.37 focuses on conduct in liquor licensed establishments. We find the two activities so different from one another that we cannot conclude that, in the absence of clear statutory language to the contrary, the Legislature intended to divest the Liquor Control Commission of either its well-established constitutional powers to control alcoholic beverage traffic, Black v Liquor Control Comm, 323 Mich 290; 35 NW2d 269 (1948), Or of its broad power to regulate the manner in which liquor is sold. Noey v City of Saginaw, 271 Mich 595; 261 NW 88 (1935). So drastic a reduction in the powers of the Liquor Control Commission requires more than inference.

The thrust of plaintiffs’ claim that Rule 436.37 contravenes the First Amendment guarantee of freedom of expression or the Fourteenth Amendment’s guarantee of equal protection is that nude dancing, when not performed in an obviously obscene or offensive manner, is protected by the First and Fourteenth Amendments. Jenkins v Georgia, 418 US 153; 94 S Ct 2750; 41 L Ed 2d 642 (1974), Erznoznik v City of Jacksonville, 422 US 205; 95 S Ct 2268; 45 L Ed 2d 125 (1975). According to plaintiffs, nude dancing is a constitutionally protected form of expression, losing such protection only when shown to be obscene. Salem Inn, Inc v Frank, 522 F2d 1045 (CA 2, 1975), Attwood v Purcell, 402 F Supp 231 (D Ariz, 1974), Lucifer’s Gate, Inc v Town of Van Buren, 83 Misc 2d 790; 373 NYS2d 304 (1975), State v Walker, 568 P2d 286 (Okla Crim App, 1977). Plaintiffs state the rule too broadly.

The landmark decision on the question at issue here is California v La Rue, 409 US 109; 93 S Ct 390; 34 L Ed 2d 342 (1972), reh den 410 US 948; 93 S Ct 1351; 35 L Ed 2d 615 (1973). In that case regulations issued by the California Department of Alcoholic Beverage Control prohibiting naked entertainment in establishments licensed to sell liqqor were challenged as being in violation of the First and Fourteenth Amendments. In sustaining the regulations, the United States Supreme Court drew a distinction between statutes or ordinances which censor dramatic performance in the theater and regulations which only prohibit such exposure in bars and cocktail lounges where liquor is sold.

"The substance of the regulations struck down prohibits licensed bars or nightclubs from displaying, either in the form of movies or live entertainment, 'performances’ that partake more of gross sexuality than of communication. While we agree that at least some of the performances to which these regulations address themselves are within the limits of the constitutional protection of freedom of expression, the critical fact is that California has not forbidden these performances across the board. It has merely proscribed such performances in establishments that it licenses to sell liquor by the drink.
"The Department’s conclusion, embodied in these regulations, that certain sexual performances and the dispensation of liquor by the drink ought not to occur at premises that have licenses was not an irrational one. Given the added presumption in favor of the validity of the state regulation in this area that the Twenty-first Amendment requires, we cannot hold that the regulations on their face violate the Federal Constitution.” (Emphasis supplied.) 409 US 109, 118-119.

Appellants claim that La Rue is not controlling since the decision refers only to a situation where the nude performances had degenerated into gross sexuality and bacchanalian revelries. We disagree. We read La Rue as upholding the facial constitutionality of the challenged regulations. Any doubts as to the scope of that decision were resolved when the Supreme Court denied certiorari in the interpretation given La Rue in Richter v Dep’t of Alcoholic Beverage Control of California, 559 F2d 1168 (CA 9, 1977), cert den 434 US 1046; 98 S Ct 891; 54 L Ed 2d 797 (1978). There, plaintiff, who operated an establishment named the "Body Shop”, admitted to allowing nude dancing on the premises but, as in the case before us, argued that La Rue only erased the First and Fourteenth Amendment protections where the dancing was shown to be more a form of gross sexuality than an artistic form of expression. The Court rejected plaintiffs interpretation, saying:

"The appellant is incorrect in his contention that it must initially be determined whether the entertainment is more 'gross sexually’ than 'communicative expression’. If it is concluded, as it apparently was in LaRue, that the combination of nude dancing and alcoholic inebriation increases to an unacceptable level the likelihood of illegal and/or disorderly conduct, the state can properly prohibit the combination of the two. The issue, therefore, is not whether the nude dancing is so near gross sexually as to approach obscenity, but whether nude dancing of any sort when performed in establishments serving liquor is sufficiently likely to cause properly proscribed conduct. Thus, the fact that the nude dancing here may have been entirely tasteful is irrelevant, once it is accepted that the state can constitutionally prohibit the serving of liquor in establishments which provide nude dancing.” 559 F2d 1168, 1173.

Accordingly, we conclude that the regulations in question were not facially violative of constitutional protections.

Finally, we hold that the regulations are not ex post facto laws as that term is used in US Const, art I, § 9(3) and Const 1963, art 1, § 10. The regulations do not purport to punish occurrences prior to the date of issue of the regulations. Further, the Liquor Control Commission had never expressly approved topless or bottomless dancing. Since the rules do not preclude or regulate facts in existence prior to November 13, 1977, the effective date of the rules, they are not ex post facto. Grant v City of Alpena, 107 Mich 335; 65 NW 230 (1895), People v Vickery, 69 Mich App 183; 244 NW2d 404 (1976).

Plaintiff’s claim that the Legislature impermissibly delegated its legislative power when it conferred authority on the Liquor Control Commission to issue rules was not raised below and, consequently, the trial court did not address the issue. Ordinarily we will not decide issues not raised below. Oakland County v Detroit, 81 Mich App 308, 313; 265 NW2d 130 (1978), Falk v Civil Service Commission of Macomb County, 57 Mich App 134, 137-38; 225 NW2d 713 (1974). Const 1963, art 4, § 40 declares the Legislature may by law establish a Liquor Control Commission which, subject to státutory limitations, shall exercise complete control of the alcoholic beverage traffic within this state, including the retail sales thereof. The constitution has made the delegation directly, and the fact the Legislature has not, in its discretion, chosen to limit the scope of that delegation violates no constitutional proscription.

Affirmed, no costs, a public question being involved.

D. E. Holbrook, J., concurred.

T. M. Burns, J.,

(concurring). I concur and write separately only to address a point raised by plaintiffs in oral argument. There, plaintiffs requested that their liquor license be returned to them upon their assurances that they would hence forth comply with the regulations of the Liquor Control Commission. In light of the fact that plaintiffs have made no formal motion for return of their license, it would be inappropriate for such relief at this time. However, if plaintiffs are in compliance with the Liquor Control Commission regulations, I would give them back their license. Therefore, I would have this Court retain jurisdiction over this matter in order that plaintiffs could file an appropriate motion so that this panel could determine whether they are entitled to have their license restored. GCR 1963, 820.1. Barr v Pontiac City Comm, 90 Mich App 446; 282 NW2d 348 (1979).

       Plaintiff claims the rules are unconstitutional because (1) the Michigan obscenity statutes preempt the field; (2) the rules violate the First Amendment of the United States Constitution guarantee of freedom of expression; (3) the rules contravene the equal protection clause of the Fourteenth Amendment of the United States Constitution by discriminating between those which sell liquor and those which do not; (4) the rules are ex post facto laws since nude dancing was lawful for three years prior to the adoption of the rules, and plaintiffs had established a clientele on such basis; (5) in giving the Liquor Control Commission authority to promulgate rules, the Legislature impermissibly delegated its legislative power. Two non-constitutional issues of minor importance were raised.


source: Caselaw Access Project

author: M. J. Kelly, P.J.

license: Public Domain

text:
    ARROWHEAD DEVELOPMENT COMPANY v LIVINGSTON COUNTY ROAD COMMISSION
    Docket No. 78-2373.
    Submitted May 8, 1979, at Detroit.
    Decided August 20, 1979.
    Leave to appeal applied for.
    Arrowhead Development Company brought an action against the Livingston County Road Commission seeking to vacate a portion of a subdivision plat by changing an existing intersection between a road in the plaintiffs subdivision, Navajo Trail, and a county road, Chilson Road, into a cul-de-sac, and alternatively, to prevent the defendant from enforcing an agreement between the parties that would require the plaintiff to regrade portions of Chilson Road in order to make the intersection between Chilson Road and Navajo Trail safer for automobile traffic. The Livingston Circuit Court, Paul R. Mahinske, J., dismissed the plaintiffs complaint. Plaintiff appeals. The sole issue on appeal is whether a county road commission may require the developer of a subdivision to make improvements on a county road, which is outside of the subdivision, as a condition of plat approval where the improvements are necessary to alleviate a hazardous condition created solely by the subdivision development. Held:

    A county road commission has statutory authority to condition approval of plats upon certain exactions designed to insure the safety of those entering a county road from a proposed subdivision street. This authority is not limited to improvements on roads within the subdivision, but allows exactions for off-site improvements. In the present case there is a rational nexus between the needs created by the subdivision and the proposed off-site improvement. The exaction here required by the defendant as a condition for plat approval was a valid exercise of the state’s police power which furthers the public health, safety and welfare and was not an unconstitutional taking of property.

      References for Points in Headnotes
    [1]39 Am Jur 2d Highways, Streets, and Bridges §§ 104, 337 et seq.

    Liability and suability, in negligence action, of state highway, toll road or turnpike authority. 62 ALR2d 1222.
    [2, 3] 56 Am Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 193 et seq.

    [4] 7 Am Jur 2d, Attorney General § 8.
    [5] 16 Am Jur 2d, Constitutional Law §§ 294, 550.

      Affirmed.
    1. Highways — County Road Commissions — Duties.
    A county road commission has an affirmative duty to design and construct roads and keep them reasonably safe and convenient for public travel.
    2. Constitutional Law — Local Governments — Powers.
    The Michigan Constitution mandates an expansive interpretation of constitutional and statutory provisions relating to the powers of local governments (Const 1963, art 7, § 34).
    3. Highways — County Road Commissions — Subdivisions — Plat Approval — Exactions — Statutes.
    The statute Which empowers county road commissions to require exactions as conditions for plat approval does not limit the exaction power solely to improvements on roads within a proposed subdivision as a condition for plat approval (MCL 560.183; MSA 26.430[183]).
    4. Courts — Court op Appeals — Opinions of Attorney General.
    Opinions of the Attorney General are not binding on the Court of Appeals.
    5. Constitutional Law — Rational Nexus Test — Plat Approval — Off-Site Improvements.
    A rational nexus test is to be used for determining the constitutionality of requiring off-site improvements as a condition for plat approval.

      Michael J. McGivney, for plaintiff.

      Laird & Grace, for defendant.
    Before: M. J. Kelly, P.J., and Bashara and R. B. Burns, JJ.
   M. J. Kelly, P.J.

In this action, plaintiff requested the lower court (1) to vacate a portion of a subdivision plat by changing an existing intersection between a subdivision road,. Navajo Trail, and a county road, Chilson Road, into a cul-de-sac; and alternatively, (2) to prevent defendant from enforcing an agreement between the parties that would require plaintiff to regrade portions of Chilson Road in order to make the intersection between Chilson and Navajo safer for automobile traffic. Plaintiff appeals as of right a May 30, 1978, order of the Livingston County Circuit Court dismissing its complaint.

At a hearing held on December 8, 1977, testimony established that plaintiff had agreed to regrade a portion of Chilson Road as a condition for approval of its subdivision plat. Although there was no testimony that any accidents had occurred at the intersection, witnesses for both plaintiff and defendant agreed that there was a visibility problem at the intersection due to the nature of the terrain. On May 1, 1978, the lower court issued a written opinion in which it concluded that:

"[A] County Road Commission may require a [subdivision] proprietor to make improvements on roads in its jurisdiction or to come under its jurisdiction as a condition to plat approval. The cutting of the sight obstruction in the case at hand is not a situation where the Road Commission is demanding that the proprietor pay for costs that are properly attributable to the County. Without the opening of Navajo Trail onto Chilson Road such obstruction would not be a hazard to travelers on Chilson Road.”

The court also held that the defendant’s decision to require plaintiff to leave open the intersection between Navajo Trail and Chilson Road was not an abuse of discretion.

Plaintiff appeals only from that portion of the lower court’s decision upholding the authority of defendant to require plaintiff to make changes in Chilson Road, a county road,, as a condition of subdivision plat approval. Thus, a single question of law is presented for our review.

May A Comity Road Commission Require The Developer Of A Subdivision To Make Improvements On A County Road, Which Is Outside Of The Subdivision, As A Condition Of Plat Approval Where The Improvements Are Necessary To Alleviate A Hazardous Condition Created Solely By The Subdivision Development?

Plaintiff asserts that, because the defendant is demanding that it pay regrading costs attributable to the county, the defendant’s action serves to deprive plaintiff of property without due process of law. On the other hand, the road commission argues that the Subdivision Control Act, MCL 560.101 et seq.; MSA 26.430(101), et seq., which empowers it to condition plat approval upon the removal of hazards created by subdivision development, should not be interpreted to require that exactions for road improvements be limited solely to those roads within the physical confines of a proposed subdivision.

At the outset, we note that this is a case of the first impression; no Michigan cases have considered the issue whether a county road commission possesses the authority to require a subdivision developer to make improvements outside of a proposed subdivision as a condition for plat approval. Therefore, in resolving this issue, our analysis necessarily commences with the language of the statute empowering county road commissions to require exactions as conditions for plat approval.

MCL 560.183; MSA 26.430(183), of the Subdivision Control Act, states in relevant part:

"(1) The county road commission may require the following as a condition of approval of final plat for all highways, streets and alleys in its jurisdiction or to come under its jurisdiction and also for all private roads in unincorporated areas:
"(a) Conformance to the general plan, width and location requirements that the board may have adopted and published.
"(b) Adequate provision for traffic safety in laying out drives which enter county roads and streets, as provided in the board’s current published construction standards.
"(c) Proper drainage, grading and construction of approved materials of a thickness and width provided in its current published construction standards.'
"(d) Submission of complete plans for grading, drainage and construction, to be prepared and scaled by a civil engineer registered in the state.
"(e) Installation of bridges, culverts and drainage structures where it deems necessary.”

It is the duty of a county road commission "to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, all county roads, bridges and culverts that are within their jurisdiction and under their care and control and which are open to public travel”. MCL 224.21; MSA 9.121. A county road commission has an "affirmative duty to design and construct the road and keep it 'reasonably safe and convenient for public travel’ ”. Mullins v Wayne County, 16 Mich App 365, 375; 168 NW2d 246 (1969).

Furthermore, the Michigan Constitution mandates an expansive interpretation of constitutional and statutory provisions relating to local government powers, for it states:

"The provisions of this constitution and law concerning counties, townships, cities and villages shall be liberally construed in their favor. Powers granted to counties and townships by this constitution and by law shall include those fairly implied and not prohibited by this constitution.” Const 1963, art 7, § 34. (Emphasis added).

The statute itself contains no limiting provision which requires that exactions take place only within the physical confines of the proposed subdivision. Moreover, its language expressly authorizes the county road commission to condition approval of plats upon certain exactions designed to insure the safety of those entering a county road from a proposed subdivision street; specifically, subparagraphs (a) and (b) permit plat approval to be conditioned on conformance with the road commission’s general plan and on adequate provision for traffic safety. Furthermore, subparagraph (e) allows the road commission to require the "(installation of bridges, culverts and drainage structures where it deems necessary”, a phrase suggesting that such installation may occur outside of the proposed plat, if necessary.

We find the absence of limiting language in the statute to be consistent with the Legislature’s intent to endow county road commissions with broad authority to carry out their public duties. To construe the statute to permit exactions only within the plat would be to impose an arbitrary and unrealistic limitation upon the road commission’s authority, contrary to its statutory directive to require "adequate provision for traffic safety”. We hold that MCL 560.183; MSA 26.430(183) does not limit a road commission’s exaction power solely to improvements on roads within the proposed subdivision as a condition of plat approval.

Plaintiffs position that off-site exactions are an unconstitutional taking, is grounded upon an opinion of the Michigan Attorney General, OAG, 1977-1978, No 5181 (March 8, 1977), which interpreted MCL 560.183; MSA 26.430(183). In that opinion, the Attorney General stated:

"Under the above-quoted section a county road commission may require a proprietor to make improvements on roads in its jurisdiction or to come under its jurisdiction. Thus, the road commission may require that certain improvements be made on county roads within a plat as a condition to plat approval. See Allen v Stockwell, 210 Mich 488; 178 NW 27 (1929). However, a county may not take advantage of a proprietor’s desire to improve his property by demanding that he pay for costs that are properly attributable to the county. Illustrative of this principle is Gordon v City of Warren Planning & Urban Renewal Commission, 388 Mich 82, 91; 199 NW2d 465 (1972).
* * *
"It is therefore my opinion that, although a county road commission may deny approval of a plat on the ground that the proprietor refuses to improve a county road within the plat submitted, the commission may not refuse to approve the plat on the ground that the proprietor refuses to perform a road improvement on a county road adjoining or near the land contained within the plat.”

We note that opinions of the Attorney General are not binding on this Court. Traverse City School Dist v Attorney General, 384 Mich 390, 410, fn 2; 185 NW2d 9 (1971), David Walcott Kendall Memorial School v Grand Rapids, 11 Mich App 231, 237; 160 NW2d 778 (1968). Because we find the foregoing analysis unpersuasive, we will not follow it. In our opinion, neither of the cited cases compels, or even suggests, the conclusion that an action by a road commission, pursuant to MCL 560.183; MSA 26.430(183), must be limited to the area within the plat.

In Allen, -supra, the Court upheld the county plat board’s refusal to approve plaintiff’s plat where plaintiff would not comply with a city ordinance which required him to grade and gravel the street, put in surface drains, lay sidewalks, and install sanitary sewers within the plat area. In Gordon, supra, it was held that the city planning commission could not require a property owner to "set-aside” land for possible future condemnation as a condition of plat approval. In holding that the commission’s action constituted a taking without due process, the Court quoted with approval the majority opinion of Judge (now Justice) Levin in Gordon v City of Warren Planning & Urban Renewal Comm, 29 Mich App 309, 327; 185 NW2d 61 (1971), where it was stated:

"The conceptual difference between requiring a yard setback for light and air (which the State need not pay for) and requiring that land be set aside for a public use (which, before it can be put to that use, the State must pay for) may not be readily explicable. It is, nevertheless, perfectly clear that there is a difference, a constitutional difference, between telling a property owner that he must provide space between his building and that of his neighbor and telling him to set aside land for possible future condemnation.”

In the case at bar, we too find there to be a constitutional difference between requiring a subdivision developer to eliminate a hazardous condition that his development has solely caused and requiring him to set aside land for possible future condemnation. Although it is true that a road commission’s exaction could be so unreasonable and arbitrary that it would deprive a developer of his property without due process of law, we think that the case law of other jurisdictions, which has propounded a "rational nexus” test between the needs created by the subdivision and the proposed off-plat improvement, provides a useful analytic framework for distinguishing a valid exaction from an unconstitutional taking.

In Divan Builders, Inc v Planning Board Twp of Wayne, 66 NJ 582; 334 A2d 30 (1975), the New Jersey Supreme Court held that a planning board could condition subdivision plat approval on the payment of money to improve a stream located outside of the plat, which carried drainage away from the subdivision. In so holding, the court reasoned that the New Jersey Constitution requires a liberal construction of municipal statutes, which in this case did not expressly limit the municipality’s power to condition plat approval to improvements within the proposed subdivision; that there was a rational nexus between the needs created by the subdivision and the proposed improvement; and finally, that the requirement was a reasonable exercise of the municipality’s authority to safeguard the public health and general welfare.

In California, it has been held that conditions imposed upon developers are lawful when they are not in conflict with statutes and ordinances and reasonably relate to the intended use of the subdivision and to the character of the area. Ayres v The City Council of Los Angeles, 34 Cal 2d 31; 207 P2d 1 (1949). Although the Ayres case concerned the dedication of property within a subdivision, in a later case, City of Buena Park v Boyar, 186 Cal App 2d 61; 8 Cal Rep 674 (1960), the California court upheld a plat approval requirement that a developer bear a portion of the cost of off-site improvements serving a proposed subdivision. Because the improvement, a drain, directly benefited the subdivision, the court upheld the imposition of costs as a valid application of a statute which spoke in terms of "land to be served” and which was not limited in application to land within a proposed subdivision. The opinion also noted that the power to require off-site improvements was a proper incident to the municipality’s police power.

In our opinion, an analysis which focuses on the rational nexus between the needs of the subdivision vis-á-vis the proposed outside improvement provides an appropriáte tool for determining the propriety of off-plat exactions by road commissions. Because the impact of subdivision developments will vary from community to community, each case must be tested on its own facts to determine whether a road commission is reasonable in exacting improvements outside the proposed subdivision. Nevertheless, we find that the rational nexus analysis provides a flexible device for the resolution of disputes which are, necessarily, fact-dependent. We therefore expressly adopt the rational nexus test for determining the constitutionality of off-site improvements as a condition for plat approval.

In the present case, the evidence establishes a rational nexus between plaintiffs development of Arrowhead Subdivision and the hazardous traffic intersection where Navajo Trail meets Chilson Road. Witnesses for both plaintiff and defendant agree that there is a visibility problem at the intersection and it is uncontroverted that the hazardous condition is a direct result of plaintiff’s development of the subdivision. In 1973, prior to plat approval, both parties recognized that the joinder of Navajo Trail to Chilson Road would create a "blindspot”, which fell well below the minimum standards for sight clearance provided in a general plan for Livingston County Roads. Anticipating this problem, the road commission exacted plaintiff’s promise to regrade the hill on Chilson Road, in order to improve sight clearance, as a condition to its approval of plaintiff’s plat. Rather than make the improvement immediately, plaintiff filed a bond guaranteeing that the improvement to Chilson Road would be made. The subdivision plat was thereupon accepted by the Livingston County Road Commission and plaintiff proceeded with development. By 1976, plaintiff had yet to perform his promise and correct the sight clearance problem. When threatened with forfeiture of the bond, plaintiff brought this suit to enjoin such action on the part of the road commission.

We find that the evidence adduced here clearly establishes a rational nexus between the creation of Arrowhead Subdivision and the hazardous traffic condition at the intersection of Navajo Trail and Chilson Road. In view of this relationship, the road commission’s exaction, that plaintiff regrade a hill on a county road, is a legitimate exercise of the state’s police power which furthers the public health, safety and welfare. We hold, therefore, that MCL 560.183; MSA 26.430(183) does not limit a road commission to exacting improvements solely on roads contained within the proposed subdivision as a condition of plat approval.

Affirmed.

       The minimum standards for sight clearance for Livingston County roads are the same as those established by the Michigan State Highway Commission.


author: J. H. Gillis, P.J.

text:
    ATTORNEY GENERAL v RECORDER’S COURT JUDGE (PEOPLE v BOVEE)
    Docket No. 78-2635.
    Submitted May 4, 1979, at Detroit.
    Decided August 21, 1979.
    Leave to appeal denied, 407 Mich —.
    John L. Bovee, a licensed chiropractor, was indicted in 1977 by a Wayne County citizens grand jury on three counts of obtaining money under false pretenses and 17 counts of practicing medicine without a license. At the preliminary examination in Detroit Recorder’s Court, J. Patrick Denis, J., one count of practicing medicine without a licence was dismissed on motion of the Attorney General. The evidence at the preliminary examination showed that Dr. Bovee had instructed his billing agent to bill Medicaid for an office visit with two manipulations upon submission of a services rendered slip. The billing agent testified that Medicaid was never billed unless she received a services rendered slip from Dr. Bovee’s office. Medicaid sent itemized invoices to Dr. Bovee along with warrants well in excess of $100 to pay for these services. Eleven patients upon whose behalf Medicaid made payments to Dr. Bovee testified, seven of whom denied receiving any kind of treatment, and three of whom stated that he, at most, had touched their shoulders or patted them on the back. There was also testimony that Dr. Bovee gave patients medicines and pills for colds, headaches, pain, and nasal congestion and topical medicine for rash and a scrape on the arm, gave injections, and took throat cultures and urine and blood samples. Upon these proofs, the magistrate dismissed the remaining counts, holding that the evidence failed to link Dr. Bovee with the crime of obtaining money under false pretenses and that the crime of practicing medicine without a license had not been shown.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 443, 449, 450.

       5 Am Jur 2d, Appeal and Error § 772 et seq.

    20 Am Jur 2d, Courts § 111 et seq.

    52 Am Jur 2d, Mandamus § 351.

       32 Am Jur 2d, False Pretenses § 32 et seq.

    Criminal prosecution or disciplinary action against medical practitioner for fraud in connection with claims under Medicard, Medicare, or similar welfare program for providing medical services. 50 ALR3d 549.

       79 Am Jur 2d, Welfare Laws § 38.

       61 Am Jur 2d, Physicians, Surgeons, and Other Healers, §§ 20, 23, 78 et seq.

    Practicing medicine, surgery, dentistry, optometry, podiatry, or other healing arts without license as separate or continuing offense. 99 ALR2d 654.

      The Attorney General filed a complaint for superintending control requesting that the magistrate be ordered to bind Dr. Bovee over on the 19 counts. The Wayne Circuit Court, Richard D. Dunn, J., issued an order requiring the magistrate to bind Dr. Boyee over for trial on the three counts of obtaining money under false pretenses but affirming the dismissal of the charges of practicing medicine without a license. Dr. Bovee appeals from that portion of the order requiring that he be bound over for trial, while the Attorney General cross-appeals from the dismissal of that portion of the complaint for superintending control relative to the charges of practicing medicine without a license. Held;

    1. A superintending court does not substitute its judgment or discretion .for that of the magistrate. The superintending court examines the record made before the magistrate to determine whether there was such an abuse of discretion as would amount to a failure to perform a clear legal duty. If such a failure is found, the superintending court should order the magistrate to perform his duty.
    2. The grant or denial of an order of superintending control is within the discretion of the trial court. Absent an abuse of discretion, the determination of the trial court will not be disturbed by the Court of Appeals,
    3. It was an abuse of discretion for the magistrate to refuse to bind oyer Dr. Bovee on the counts charging him with obtaining money under false pretenses. The proofs clearly established the elements of a false pretense and an accomplished fraud, and the element of intent to defraud could reasonably be inferred from the eyidence relating to the billing procedures. The circuit court therefore properly granted the .order of superintending control with respect to the false pretenses counts.
    4. The giving of medicine or pills, the administering of injections and the taking of throat cultures and blood and urine samples are activities which constituted the practice of medicine within the meaning of the now repealed Medical Practice Act. A chiropractor could b.e prosecuted under that act for the felony of practicing medicine without a license unless such acfiyities were authorized by the license issued pursuant to the now repealed chiropractic act. Since such activities were not procedures preparatory to spinal manipulation within the meaning of the now repealed chiropractic act, they were not activities authorized by the license issued pursuant to the chiropractic act.
    5. A constitutional challenge on the ground of vagueness to the language in the chiropractic act defining chiropractic as including procedures preparatory to manual adjustment of the spine is inapposite where the proofs establish that the activities in question were in no way preparatory to a manual adjustment of the spine.
    6. The scope of chiropractic practice as defined by the now repealed chiropractic act could not be expanded by resolution by the chiropractic board.
    7. The circuit court erred in denying an order of superintending control ordering the magistrate to bind over Dr. Bovee on those counts for practicing medicine without a license in which it is alleged that Dr. Bovee gave pills or medicine, gave injections or took throat cultures or blood or urine samples.
    Affirmed in part and reversed in part.
    1. Criminal Law — Preliminary Examination — Probable Cause.
    The prosecution is required to show at the preliminary examination that a crime has been committed and that there is probable cause to believe that the accused is guilty of having committed that crime.
    2. Mandamus — Superintending Control — Record — Discretion — Clear Legal Duty.
    A superintending court in reviewing a decision of a magistrate does not substitute its judgment or discretion for that of the magistrate; rather, it examines the record made before the magistrate to determine whether there was such an abuse of discretion as would amount to a failure to perform a clear legal duty, and if such failure is found, the superintending court orders the magistrate to perform his duty.
    3. Appeal and Error — Order of Superintending Control — Discretion.
    The grant or denial of an order of superintending control is within the discretion of the trial court and, absent an abuse of discretion, will not be disturbed by the Court of Appeals.
    4. False Pretenses — Elements of Crime.
    The elements of the crime of false pretenses are: (1) the intent to defraud, (2) the false pretense, and (3) the fraud accomplished.

      5. Appeal and Error — False Pretenses — Magistrates — Discretion.
    It was an abuse of discretion for a magistrate to fail to bind over a chiropractor on charges of obtaining money under false pretenses where the proofs established that billings were submitted to Medicaid for services not rendered, that payments were made by Medicaid pursuant to those billings, and that the billings were made by the billing agent pursuant to "services rendered” slips received from the chiropractor.
    6. Physicians and Surgeons — Practice of Medicine — Practice Without License — Chiropractors — Criminal Liability — Statutes.
    Giving medicine or pills for colds, headaches, pain and nasal congestion and topical medicine for rash and scraped arms, administering injections and taking throat cultures and blood and urine samples are activities which constituted the practice of medicine within the meaning of the now repealed Medical Practice Act; thus, a chiropractor could be prosecuted under that act for the felony of practicing medicine without a license unless such activities were authorized by the license issued pursuant to the now repealed chiropractic act (MCL 388.1802[g], 338.1816[2]; MSA 14.542[2][g], 14.542[16][2]).
    7. Physicians and Surgeons — Chiropractors — Drugs — Injections — Fluid Samples — Statutes.
    The giving of medicine or pills, the administering of injections, and the taking of throat cultures and blood and urine samples were not procedures preparatory to spinal manipulation within the meaning of the now repealed chiropractic act (MCL 338.156; MSA 14.596).
    8. Constitutional Law — Chiropractic Act — Vagueness — Standing.
    A challenge on the constitutional ground of vagueness to the language in the now repealed chiropractic act defining chiropractic as including procedures preparatory to manual adjustment of the spine is inapposite where the proofs establish that the activities in question were in no way preparatory to a manual adjustment of the spine.
    9. Physicians and Surgeons — Chiropractic Act — Scope — Chiropractic Board.
    The scope of chiropractic practice was defined by the now repealed chiropractic act and the chiropractic board was without authority to expand that definition by resolution.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Max R. Hoffman, Jr. and Robert W. Kasperek, Assistants Attorney General, for plaintiff.

      Lippitt, Harrison, Perlove, Friedman & Zack, for John L. Bovee.
    Before: J. H. Gillis, P.J., and Beasley and R. B. Webster, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   J. H. Gillis, P.J.

Appellant, a licensed chiropractor, was indicted by a Wayne County citizens grand jury on August 23, 1977. The indictment charged Dr. Bovee with three counts of obtaining money under false pretenses in an amount greater than $100, MCL 750.218; MSA 28.415, and 17 counts of practicing medicine without a license, MCL 338.1816(2); MSA 14.542(16X2).

During the preliminary examination one count was dismissed upon motion of the attorney general. The magistrate dismissed the remaining counts, ruling that the evidence failed to link Dr. Bovee with the crime of obtaining money under false pretenses and that the crime of practicing medicine without a license had not been shown.

A complaint for superintending control was filed with the Wayne County Circuit Court requesting that the magistrate be ordered to bind Dr. Bovee over for trial on the 19 counts. An order was issued requiring the magistrate to bind Dr. Bovee over for trial on the three counts of obtaining money under false pretenses but affirming the dismissal of the charges for practicing medicine without a license.

Appellant appeals that portion of the order requiring that he be bound over for trial. The attorney general has cross-appealed seeking to have the charges for practicing medicine without a license reinstated.

At the preliminary examination, the people are required to show that a crime has been committed and that there is probable cause to believe that the accused is guilty of having committed that crime. People v Duncan, 388 Mich 489; 201 NW2d 629 (1972), People v Charles D Walker, 385 Mich 565; 189 NW2d 234 (1971).

In reviewing the decision of the magistrate, the superintending court does not substitute its judgment or discretion for that of the magistrate; rather, it examines the record to determine whether there was such an abuse of discretion as would amount to a failure to perform a clear legal duty. If such is the case, the superintending court orders the magistrate to perform his duty. People v Flint Municipal Judge, 383 Mich 429; 175 NW2d 750 (1970).

The grant or denial of an order of superintending control is within the discretion of the trial court and, absent an abuse of discretion, will not be disturbed by this Court on appeal. People v East Lansing Municipal Judge, 42 Mich App 32; 201 NW2d 318 (1972).

I

Obtaining Money Under False Pretenses

The evidence submitted at the preliminary examination indicates that Medicaid will only reimburse two services rendered by chiropractors; an office visit with one manipulation and an office visit with two or more manipulations, where subluxations of the spine are demonstrable by x-ray. Dr. Bovee hired a billing agent to do his Medicaid billings. After discussing which services were covered by Medicaid, he instructed the billing agent that upon submission of a services rendered slip Medicaid should be billed for an office visit with two manipulations unless otherwise indicated. The billing agent, Karen Fair, testified that she never submitted a bill to Medicaid unless she received a services rendered slip from Dr. Bovee’s office.

Additional evidence was presented showing that Medicaid sent itemized invoices to Dr. Bovee along with warrants well in excess of $100 to pay for these services. Eleven patients upon whose behalf Medicaid made payments to Dr. Bovee testified below. Seven denied receiving any kind of back treatment from Dr. Bovee. Three stated that he, at most, had touched their shoulders or patted them on the back, and one testified that Dr. Bovee had manipulated her back.

The magistrate dismissed the charges because he heard no testimony linking Dr. Bovee personally with the slips to the billing service. The circuit court ruled that the people had fulfilled their obligation of presenting a sufficient quantum of evidence to establish the corpus delicti of the false pretenses counts and probable cause to believe Dr. Bovee committed them and that the magistrate, therefore, had abused his discretion in refusing to bind Dr. Bovee over for trial.

The elements of the crime of false pretenses are: (1) the intent to defraud, (2) the false pretense, and (3) the fraud accomplished. People v Wilde, 42 Mich App 514, 517; 202 NW2d 542 (1972). Here, the latter two elements have been clearly established. Billings were submitted for services which were never rendered, and payments were made by Medicaid in reliance upon the false information supplied to it.

The only questions, therefore, are whether Dr. Bovee was responsible for the submission of the false information and whether his actions were done with intent to defraud.

At the preliminary examination Karen Fair testified that when Dr. Bovee hired her to do his billings they discussed the fact that Medicaid would reimburse chiropractors only for spinal manipulations. Ms. Fair further testified that Dr. Bovee specifically instructed her to submit a claim to Medicaid requesting payment for an office visit with two spinal manipulations, unless otherwise instructed, upon her receipt of a "services rendered” slip from his office. Ms. Fair also stated that she never submitted such a claim unless first receiving a slip from Dr. Bovee’s office.

A number of Dr. Bovee’s patients testified that he treated them for various ailments but never gave them any spinal manipulations. Claim forms were submitted to Medicaid indicating spinal manipulations had been performed on these same patients.

Warrants (similar to a check but issued by the state) along with "remittance advice forms” containing the name of the patient, the date of service, the code number for the type of service and the amount paid were sent by Medicaid to Dr. Bovee. Dr. Bovee stipulated that he negotiated the warrants in question.

Ms. Fair testified that Dr. Bovee called her on several occasions to complain when Medicaid rejected a claim but he never attempted to rectify any improper payment.

It may reasonably be inferred from this circumstantial evidence that Dr. Bovee was responsible for the submission of false claims and that he had the intent to defraud the Medicaid program. The evidence that he frequently called Ms. Fair to complain when Medicaid rejected a claim indicates he reviewed the records of Medicaid payments and thus was aware he was receiving payments for performing spinal manipulations on certain patients when, in fact, no such services had been rendered to these patients. This evidence, when combined with the evidence of the instructions Dr. Bovee gave to Ms. Fair concerning billing Medicaid, is sufficient to conclude that he had the requisite intent.

The circuit court was correct in determining that the magistrate had abused his discretion in not binding Dr. Bovee over for trial. It is not necessary for the people to establish guilt beyond a reasonable doubt, but only proof that an offense has occurred and the defendant’s probable guilt. People v Medley, 339 Mich 486; 64 NW2d 708 (1954). The people have met that standard with respect to counts one through three.

II

Practicing Medicine Without a License

Practicing medicine without a license is a felony. MCL 338.1816(2); MSA 14.542(16)(2). The practice of medicine was defined by statute to consist of the following:

" 'Practice of medicine’ or 'to practice medicine’ means to diagnose, treat, prevent, cure, or relieve a human disease, ailment, defect, complaint, or other condition, whether physical or mental, by attendance or advice, or by a device, diagnostic test, or other means, or to offer, undertake, attempt to do, or hold oneself out as able to do, any of these acts.” MCL 338.1802(g); MSA 14.542(2)(g).

In the instant case, witnesses testified that Dr. Bovee gave them various medicines or pills for colds, headaches, pain and nasal congestion, topical medicine for rash and a scrape on the arm, and injections. In addition, throat cultures and blood and urine samples were taken.

All of these activities fall within the above definition of the practice of medicine. Hence, unless Dr. Bovee is authorized to do these acts, he may be prosecuted under MCL 338.1816(2).

Exemption from the licensing requirements of the now repealed Medical Practice Act was provided for those persons licensed under other laws, to the extent authorized by such license. MCL 338.1816(l)(g); MSA 14.542(16)(l)(g). Dr. Bovee was licensed under the now repealed chiropractic act. Hence, it is necessary to examine that act to determine the scope of his authority to engage in the complained of activities.

Section 6 of the chiropractic act established the parameters of Dr. Bovee’s license:

"The license provided for in this act shall entitle the holder thereof to practice chiropractic in the state of Michigan, and for the purpose of this act chiropractic is defined as 'the locating of misaligned or displaced vertebrae of the human spine, the procedure preparatory to and the adjustment by hand of such misaligned or displaced vertebrae and surrounding bones or tissues, for the restoration and maintenance of health.’ A licensed doctor of chiropractic under this act may use x-ray and such analytical instruments as are approved by the Michigan board of chiropractic examiners in the examination of patients solely for the purpose of locating misaligned or displaced vertebrae of the human spine and for the procedures preparatory thereto.” MCL 338.156; MSA 14.596._

In dismissing the counts of practicing medicine without a license, the magistrate held that the acts in which Dr. Bovee engaged were procedures preparatory to spinal manipulation, and the circuit court agreed with that determination.

The magistrate and circuit court erred as a matter of law in finding that defendant’s actions were part of the procedure preparatory to spinal manipulations. The term "procedure preparatory to” did not give chiropractors the authority to dispense any type of medicine, prescription or otherwise; neither did it allow them to perform injections, take blood samples or perform diagnostic tests other than those necessary to determine the existence of misaligned or displaced vertebrae.

In Attorney General v Raguckas, 84 Mich App 618, 624, 625; 270 NW2d 665 (1978), this Court ruled that chiropractors were not authorized to dispense prescription drugs or perform acupuncture. In so ruling the Court made the following observations:

"Defendants’ position that they should be permitted to dispense drugs is directly contrary to the philosophical foundation of the chiropractic profession. The Michigan statutory definition is in accord with the universally accepted view that the chiropractic profession is limited to the manual adjustment of the spine. Drugs play no part in the chiropractor’s approach to health.
"It is the conclusion of this Court that the Legislature of this state intended to authorize the practices of chiropractic as generally recognized and understood. The contention that the statutory language 'procedure preparatory to’ manual adjustment authorizes the chiropractor to dispense drugs is violative of the intent of the Michigan Legislature. A logical extension of this argument would allow chiropractors to do anything as long as it was somehow 'preparatory to’ the manual adjustment of spinal vertebrae. Accordingly, we rule, as a matter of law, that chiropractors are not authorized to dispense drugs to their patients.”

While the Court in Raguckas was concerned with prescription drugs, we conclude that the rationale of that case is likewise applicable to nonprescription medicines.

In State v Wilson, 11 Wash App 916; 528 P2d 279 (1974), the Washington Supreme Court ruled that chiropractors may not give or prescribe minerals, vitamins or food supplements. The Court noted that while these items are available without prescription in retail stores they may, nevertheless, be dangerous when improperly used.

We agree with this analysis and conclude that the Michigan Legislature did not intend that chiropractors use any medicine given internally or externally for the treatment of disease or other human ailment.

Dr. Bovee also gave his patients injections and drew blood samples. These activities involved penetration of the skin and, therefore, were surgical acts outside the scope of chiropractic. Raguckas, supra, at 626.

Finally, Dr. Bovee took throat cultures and urine samples for analytical purposes. Whether such diagnostic tests were within the scope of chiropractic has not previously been ruled upon in. this state.

At least one state has ruled that chiropractors are not authorized to collect human specimens, including urine and blood samples. Association of Chiropractors, Inc v Jefferson County Medical Society, 549 SW2d 817, 821 (Ky, 1977).

Appellant contends that he had a duty to ascertain whether a patient’s ailments were of a type to which chiropractic might be applied, Janssen v Mulder, 232 Mich 183; 205 NW 159 (1925), and that the use of such diagnostic techniques was necessary for making such a determination. While analysis of human specimens may reveal the existence of organic problems untreatable by chiropractic, this is true for all diagnostic tests used by members of the medical profession. We do not believe the Legislature intended to authorize chiropractors to engage in general diagnostic techniques. Had such a result been intended, it could have been clearly stated, as was done with respect to the use of x-rays. Rather than authorizing general diagnostic techniques, the statute limited chiropractors to those methods which might reveal the existence of misaligned or displaced vertebrae.

We fail to see how taking urine samples or throat cultures will reveal the existence of subluxations. Hence, we conclude that such activities were outside the scope of a chiropractor’s authority.

Appellant contends, nevertheless, that the statute was so vague that a practitioner had to guess at its meaning and that, therefore, criminal prosecution is barred upon due process grounds.

While appellant’s arguments might have merit in a different factual context, the statute limited chiropractic to "adjustment by hand” of misaligned or displaced vertebrae and the "procedure preparatory to” such manual adjustment. The testimony of Dr. Bovee’s patients indicates that they were treated for a variety of ailments by methods other than manual adjustment of the spine. Even assuming that the methods used by Dr. Bovee could in some instances be construed to be preparatory to manual adjustment, it is evident that under the facts of this case that was not the situation. No manual adjustment was ever discussed, suggested, or done; nor were the patients advised that their problems were not treatable by chiropractic. Hence, the facts indicate that appellant’s activities were not in any way preparatory to manual adjustment of the spine and were, therefore, clearly outside the statutory limits imposed upon chiropractors.

Appellant also asserts that the chiropractic board adopted resolutions declaring that the complained of activities were within the scope of chiropractic. The scope of chiropractic was defined by statute, and the board was without authority to expand that definition by resolution. While the act gave the board the authority to promulgate rules approving the use of certain analytical instruments, MCL 338.156; MSA 14.596, MCL 338.152; MSA 14.592, during the period in question no such rules were in effect.

Accordingly, the decision of the circuit court ordering the magistrate to bind appellant over for trial on the charges of obtaining money under false pretenses, counts one through three, is affirmed. In reference to the charges of practicing medicine without a license, the decision as to counts 7 and 15 is affirmed, there being no evidence that appellant engaged in any acts which the attorney general contends were outside the scope of chiropractic. See note 2, supra. With respect to the remaining counts, 4 through 6, 8 through 12, 14, and 16 through 20, the circuit court is reversed and the case is remanded for proceedings consistent with this opinion.

       The activities involved in this case took place in 1976, prior to the effective date of the Public Health Code, 1978 PA 368, which repealed both the Medical Practice Act, MCL 338.1801-338.1818; MSA 14.542(1)-14.542(18) and the chiropractic act, MCL 338.151-338.159; MSA 14.591-14.599. Since it was the provisions of those prior acts that were in effect at the time of the alleged offenses, it is the language of those acts that we construe herein. Accordingly, the statutory citations herein are to the statutory provisions in effect at the time of the alleged offenses.

       A summary of the various counts and the testimony of the witnesses concerning the allegedly improper services performed by Dr. Bovee is as follows:
      Count Patient Services
      4 Millie Moore a) Medicine for a cold
      b) Injection
      c) Blood sample
      5 Chequita Moore a) Medicine for a cold
      6 Willie Moore a) Pills for a rash
      b) Throat culture
      7 Raymond Moore No treatment
      8 Judy Reese a) Blood sample
      b) Injection
      c) Urine sample
      d) Pills
      9 Beale Reese a) Injection
      b) Urine sample
      c) Throat culture
      10 Tonya Reese a) Pills
      b) Cough medicine
      11 Deborah Jacobs a) Blood sample
      b) Injections
      c) Pills
      d) Urine sample
      12 Jeffrey Jacobs a) Blood sample
      b) Topical medicine for arm
      c) Cold medicine
      d) Urine sample
      e) Throat culture

        13 Timothy Jacobs Dismissed on prosecutor’s motion
      14 Theresa Tyson a) Iron shots
      b) Antibiotic pills
      c) Urine sample
      d) Blood sample
      15 Tony Tyson a) Took temperature
      16 Flora Lord a) Urine sample
      b) Throat culture
      c) Pain pills
      d) Pills for nasal congestion
      17 Tomaika Lord a) Throat culture
      b) Cough medicine
      18 Frances Green a) Diet pills
      b) Injections
      c) Blood sample
      19 Brenda Cox a) Injections
      b) Diet pills
      c) Blood sample
      d) Throat culture
      e) Urine sample
      f) Flu medicine
      20 Janice Peterson a) Urine sample
      b) Blood sample
      c) Injection
      d) Diet pills

       The definition of chiropractic was changed subsequent to the events in this case. The new definition is contained in § 16401 of the Public Health Code, effective September 30, 1978. It reads:
      "(a) 'Chiropractor’, 'chiropractic physician’, 'doctor of chiropractic’, or 'd.c.’ means an individual licensed under this article to engage in the practice of chiropractic.
      "(b) 'Practice of chiropractic’ means that discipline within the healing arts which deals with the nervous system and its relationship to the spinal column and its interrelationship with other body systems. Practice of chiropractic includes:
      "(i) Diagnosis, including spinal analysis, to determine the existence of spinal subluxations or misalignments that produce nerve interference, indicating the necessity for chiropractic care.
      "(ii) The adjustment of spinal subluxations or misalignments and related bones and tissues for the establishment of neural integrity utilizing the inherent recuperative powers of the body for restoration and maintenance of health.
      "(iii) The use of analytical instruments, nutritional advice, rehabilitative exercise and adjustment apparatus regulated by rules promulgated by the board pursuant to section 16423, and the use of x-ray machines in the examination of patients for the purpose of locating spinal subluxations or misaligned vertebrae of the human spine. The practice of chiropractic does not include the performance of incisive surgical procedures, the performance of an invasive procedure requiring instrumentation, or the dispensing or prescribing of drugs or medicine.
      "(2) In addition to the definitions in this part, article 1 contains general definitions and principles of construction applicable to all articles in this code and part 161 contains definitions applicable to this part.” MCL 333.16401; MSA 14.15(16401).

         Deborah Jacobs testified that she did receive some spinal manipulations for a back problem. However, her testimony also indicates that Dr. Bovee treated her for other unrelated problems by methods other than spinal adjustments.


author: B. D. Burdick, J.

text:
    BRAY v FRANKENMUTH MUTUAL INSURANCE COMPANY
    Docket No. 78-4372.
    Submitted June 5, 1979, at Grand Rapids.
    Decided August 21, 1979.
    Allen L. Bray obtained insurance from Frankenmuth Mutual Insurance Company to cover a pickup truck in October of 1975. In April of 1976, he transferred the insurance and premium on the pickup truck to a 1976 Yamaha motorcycle. Following the transfer of insurance he was injured when his motorcycle went out of control. No other vehicles were involved in the accident. Bray brought an action against Frankenmuth for personal injury protection benefits resulting from the motorcycle accident. Summary judgment for plaintiff, Manistee Circuit Court, Charles A. Wickens, J. Defendant appeals, alleging that in cases where a motorcyclist has purchased nonrequired personal injury protection coverage, that coverage applies only to collisions involving the motorcycle and a motor vehicle, as that term is used under the Michigan no-fault act. Held:

    The sole purpose of plaintiff’s policy with defendant was to provide insurance coverage for the motorcycle. After the transfer of coverage from the pickup to the motorcycle, defendant retained plaintiff’s premium and did not effectively cancel plaintiff’s personal injury protection coverage. While motorcycle owners are not required to maintain personal injury protection insurance under the no-fault act, the plaintiff had effectively purchased nonrequired injury protection coverage for his motorcycle. Where a motorcycle owner has elected to pay for this type of nonrequired coverage and is injured while riding his motorcycle he is entitled to the coverage purchased and may enforce the contract.
    Affirmed.
    1. Automobiles — Insurance — Motorcycles — Personal Injury Protection-No Fault — Statutes.
    Motorcycle owners are not required to maintain personal injury protection insurance under the Michigan no-fault act (MCL 500.3101 et seq.; MSA 24.13101 et seq.).

      References for Points in Headnotes
    [1, 2] Am Jur New Topic Service, No Fault Insurance § 17.
    Validity and construction of "no fault” automobile insurance plans. 42 ALR3d 229.
    What constitutes a “motor vehicle” covered under no fault insurance. 60 ALR3d 651.

      2. Automobiles — Insurance — Motorcycles — Personal Injury Protection — No Fault.
    The purchase of personal injury protection insurance by a motorcyclist is not required by the no-fault act; however, where a motorcycle owner has elected to pay for this type of nonrequired coverage, and is injured while riding his motorcycle, he is entitled to the coverage purchased and may enforce the insurance contract.

      Jennings & DeVries, for plaintiff.

      John D. Hayes, for defendant.
    Before: R. B. Burns, P.J., and D. E. Holbrook, Jr. and B. D. Burdick, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   B. D. Burdick, J.

Defendant appeals an order of summary judgment in favor of plaintiff, on the issue of liability only, in plaintiff’s action against defendant for personal injury protection (PIP) benefits allegedly due plaintiff as the result of a motorcycle accident.

Both parties made motions for summary judgment on the question of liability. The parties agreed on the facts for purposes of those motions. Plaintiff obtained insurance through the defendant for a pickup truck in October of 1975. In April of 1976, plaintiff transferred the insurance and premium on the pickup truck to a 1976 Yamaha motorcycle. The parties agreed, for purposes of the summary judgment, that the original insurance policy was in effect at the time of the accident and that there had been no statutorily effective cancellation of plaintiffs personal injury protection benefits.

On appeal, the defendant argues that even in cases where a motorcyclist has purchased nonrequired personal injury protection coverage, that coverage applies only to collisions involving the motorcycle and a motor vehicle, as that term is defined under the no-fault act, MCL 500.3101 et seq.; MSA 24.13101 et seq. The plaintiff in this case was injured when his motorcycle went out of control; there were no other vehicles involved in the accident. Thus, defendant argues, no personal injury protection coverage existed.

This Court does not accept defendant’s argument. As conceded by the defendant for purposes of the summary judgment, defendant undertook to transfer plaintiffs insurance coverage from plaintiffs pickup truck to plaintiffs motorcycle. The defendant retained plaintiff’s premium and did not effectively cancel plaintiffs personal injury protection benefits. It is undisputed that the sole purpose of plaintiff’s policy with the defendant was to provide insurance coverage for the motorcycle. While motorcycle owners are not required to maintain personal injury protection insurance pursuant to the no-fault act, the plaintiff in this case had effectively purchased nonrequired personal injury protection coverage for his motorcycle.

In Porter v Michigan Mutual Liability Co, 80 Mich App 145, 150; 263 NW2d 318 (1977), lv gtd 403 Mich 851 (1978), this Court held that a motorcycle owner who has elected to pay for this type of nonrequired PIP coverage may enforce the contract, subject to the requirements of the act, even though he was injured on a motorcycle. The plaintiff in this case elected to purchase the same type of nonrequired PIP coverage for his motorcycle as was present in Porter and, thus, was entitled to the coverage purchased. The insurance liability present in Porter was not based, as defendant suggests, on the fact that another motor vehicle was involved in the accident.

Judge Danhof wrote a dissenting opinion in Porter, in which he argued that when a motorcyclist has purchased optional PIP coverage which is not within the framework of the act, the PIP priorities established for nonoccupants of motor vehicles in MCL 500.3115(1); MSA 24.13115(1), apply. The dissenting opinion specifically acknowledged, however, that the optional PIP coverage would apply in a case of this type in which no motor vehicle was involved:

"* * * [P]laintiffs optional PIP coverage is not within the framework of the act; it is coverage provided by plaintiffs automobile insurer as a service to a (motorcyclist) automobile policy owner to safeguard against catastrophic loss arising from an accident in which no 'motor vehicle’, under the act’s definition, is involved.” Porter, supra, at 158.

Thus, the plaintiff in this case was entitled to the optional PIP coverage for his motorcycle which he had effectively purchased from the defendant. Accordingly, the trial court’s order granting plaintiff’s motion for summary judgment is affirmed.

       Distinguish Piersante v American Fidelity Insurance Co, 88 Mich App 607; 278 NW2d 691 (1979), in which plaintiff’s insurance carrier was responsible for PIP benefits, in the absence of optional PIP motorcycle coverage, because a motor vehicle, as statutorily defined, was involved in the accident.