It may seem that writing rules guiding people’s behavior is straightforward: Define the actions that are prohibited. Common rules that citizens run up against often appear this way, including speed limits, parking restrictions, licensing rules and registration requirements. Unfortunately, many administrative rules are not this way at all — they are, instead, vague, ill-defined and subject to numerous interpretations. This can result in the government making a criminal of even well-intentioned citizens who know the rules and are trying to abide by them.
The regulatory requirements governing home-based child care provide several examples of such rules. Home-based child care is a service typically run by people who offer day care services out of their own home. According to the Michigan Department of Licensing and Regulatory Affairs, more than 4,000 such providers have a state license.[*] State law authorizes the Michigan Department of Health and Human Services and LARA to promulgate rules about who may offer these services, who they may employ and where and how this care may be provided. Anyone who violates these rules is guilty of a misdemeanor, punishable by a fine of up to $1,000.
These regulations are extremely detailed, covering 23 pages of text and including at least 250 different specific orders — measured by the number of times the word “shall” appears in the rules. Nevertheless, several requirements made of in-home day care providers are subjective and vague. This leaves providers in a precarious situation, as what they perceive to be as abiding by the rules may, in fact, be a violation in the eyes of administrative agencies. In addition, interpretations of subjective rules may vary among individual administrative agents, so that according to one official the rule is being followed and according to another, it is not.
For instance, day care providers may only display television, movies, video games and other content if it is “suitable to the age of the child in terms of content and length of use.” Determining what is age-appropriate, as most parents know, is highly subjective and varies from family to family and from child to child. Some parents will expose their younger children to content that other parents would not feel is appropriate even for their older children. This makes it very difficult for day care providers to know if they are complying with these rules.
In-home day care providers also “shall provide an adequate and varied supply of outdoor play equipment, materials, and furniture” that is “appropriate to the developmental needs and interests of children” and is “safe and in good repair.” Again, what is adequate, varied, safe and in good condition is in the eye of the beholder. One person might find three different pieces of equipment adequate and varied while another believes no fewer than five options are. The definition of “safe” and “in good condition” also has a subjective element. And while the rules do provide additional stipulations for certain types of equipment, it does not define these key terms.
Another example from these rules: the electrical cords used by in-home day care providers “shall be arranged so they are not hazards to children.” This rule is so vague that it provides almost no indication of how a provider would know that it is satisfied. The lack of specification could lead to one person’s neat and tidy design being deemed a hazard by state authorities.
The state’s regulation of dog kennels also contains ill-defined rules. These rules are promulgated by MDARD, per a 1969 law.[†] A person who violates this act or a rule created under it is guilty of a misdemeanor. Several of the subsequent rules are very broad, unspecific and open to interpretation.
For instance, indoor housing for dogs must be “adequately ventilated to provide for the health and comfort of the animals at all times.” Ventilation can come via windows, doors, vents or air conditioning systems and must “minimize drafts, odors and moisture condensations.” How much ventilation is “adequate” is not specified, nor is how much draft or odor is too much. Similar nonspecific requirements are made regulating indoor lighting: It must be “ample,” of “good quality” and “provide uniformly distributed illumination of sufficient intensity.” How this will be measured or determined is never stated.
Finally, dog kennels are required to maintain “a sufficient number of employees” to “maintain the prescribed level of husbandry practices set forth in these rules.” But, again, no specifications are provided, making it impossible for owners of dog kennels to know if they are complying with the law.
It can be easy to quantify some behaviors and then develop regulations, as is the case with setting speed limits on roads. But as these examples suggest, many activities are not so easily defined, quantified and regulated. This demonstrates an important fact: There is a limit to what the state can efficiently and effectively control. Dictating the appropriate lighting in a dog kennel or the arrangement of electrical cords in a home appear beyond this limit. And so are many administrative rules, which leaves citizens unsure if they are in compliance or not. This is especially troubling for rules that carry criminal sanctions. Because they are ill-defined, it is up to the opinion of an administrative agency or an individual state agent to determine what is criminal behavior and what is not.
[*] Active licenses are available to view here: https://childcaresearch.apps.lara.state.mi.us/
[†] Actually, there appears to be some duplication in the rules and law. One section of the Dog Law of 1919 also covers dog kennels, and it authorizes the director of MDARD to create rules for dog kennels. PA 287 of 1969 specifically applies to “large-scale dog breeding kennels,” which means facilities with 15 or more female dogs used for breeding. However, the Dog Law of 1919 says that it applies to any “establishment wherein or whereon 3 or more dogs are confined and kept for sale, boarding, breeding or training purposes, for remuneration.” It appears that the Dog Law of 1919 and its rules apply to kennels housing between three and 15 dogs and that both PA 287 of 1969 and the Dog Law apply to kennels with more than 15 dogs. MCL § 287.261(d); MCL § 287.270; MCL § 287.331(o); MCL § 287.332.