Sales Person License
BEFORE THE UTAH STATE TAX COMMISSION
) Appeal No. 02-1768
MOTOR VEHICLE ENFORCEMENT ) Tax Type: Sales Person License
DIVISION, UTAH STATE TAX )
COMMISSION, ) Judge: Phan
Jane Phan, Administrative Law Judge
For Petitioner: PETITIONER
For Respondent: Gale Francis, Assistant Attorney General
STATEMENT OF THE CASE
This matter came before the Utah State Tax Commission for an Initial Hearing pursuant to the provisions of Utah Code Ann. '59-1-502.5, on November 26, 2002.
Petitioner is appealing the suspension of his salesperson license, license number #####. Respondent had issued the license based the Motor Vehicle Salesperson Application submitted by Petitioner, dated March 27, 2002. The issuance of the license is subject to the results of a criminal background check. After the criminal background check indicated that Petitioner had been convicted of crimes which were not disclosed on the application, Respondent suspended Petitioner's salesperson licence pursuant to Utah Code Ann. Sec. 41-2-209.
On the Motor Vehicle Salesperson Application form, the applicant is asked to list every state and federal conviction in the past 10 years. In response Petitioner listed, "Drug charges 1995, Class A misdemeanor 2001." Petitioner was arrested in 1995 on drug charges and convicted on two of the charges in 1996, second degree felony counts of illegal possession/use of controlled substance. Petitioner failed to list a Class B misdemeanor conviction on July 27, 1998 for domestic assault. In addition, there were two, Class A misdemeanor convictions in 2001, although both were from the same incident. One was for unlawful detention and the other simple assault. Petitioner is currently on probation for the 2001 convictions. Petitioner had served prison time and probation for the drug related convictions. He was released from probation in October 1999. One of the terms of probation was successful completion of a drug treatment program. He has had no further drug related convictions. Petitioner also was apparently sentenced to one year probation on the Class B misdemeanor which may be why he was on probation until October 1999.
Petitioner asked that his license be reinstated as the sale of motor vehicles was his career path of choice and provided him with the opportunity to earn a living and support his children. He submitted a letter from his Probation Officer that indicated he was in good standing with the terms of his probation. The Probation Officer also stated, "Based on his criminal record, I do not have any concerns about him being a car salesman. His past crimes have not involved his employment." He also submitted a letter from his employer, COMPANY, which recommended approving him for the salesperson license.
(2)(a) If the administrator finds that there is a reasonable cause to deny, suspend, or revoke a license issued under this chapter, the administrator shall deny, suspend, or revoke the license. (b) Reasonable cause for denial, suspension, or revocation of a license includes . . . (iv) a violation of any state or federal law regarding motor vehicles; . . . (vii) making a false statement on any application for a license under this chapter or for special license plates; (viii) a violation of any state or federal law regarding controlled substances; (Utah Code Ann. 41-3-209(2).).
DECISION AND ORDER
The Utah Legislature has dictated a number of specif incidents that give rise to reasonable cause for denial, revocation or suspension of a salesperson's license. One of the items listed is violation of state or federal law regarding controlled substances. Petitioner did have this type of conviction but it stemmed back to an arrest in 1995. Petitioner served some prison time, completed probation and a drug treatment program. According to his criminal record he was discharged from probation in October 1999. Because of the time that has elapsed between the arrest, as well as from the discharge from probation for the drug charges, and the fact that there have been no subsequent drug related convictions, the Commission does not find this sufficient grounds for suspension or revocation of a license.
Petitioner has no motor vehicle law violation charges or convictions which is the other crime specifically mentioned by the legislature in Utah Code Ann. 41-3-209(2). The legislature did not dictate that assault or unlawful detention are basis for revocation of a license. The Commission can foresee that there could be some circumstances where these types of crimes may warrant suspension or revocation. However, in the present case it does not appear that these convictions should prevent Petitioner from being employed as a salesperson.
The statute does specifically list making a false statement on the salesperson application as grounds for revocation, denial or suspension of the license. Petitioner was not completely forthcoming on his Motor Vehicle Salesperson Application about all of his prior convictions and a temporary suspension on this basis is warranted. However, due to the fact that the crimes which he failed to disclose were misdemeanors and not of the type specifically listed in Utah Code Ann Sec. 41-3-209, as well as other circumstances in this appeal, the Commission terminates the suspension as of the date of this order and reinstates Petitioner's sales person license. Based on the foregoing, the Commission reinstates Petitioner's salesperson license. It is so ordered.
This decision does not limit a party's right to a Formal Hearing. However, this Decision and Order will become the Final Decision and Order of the Commission unless any party to this case files a written request within thirty (30) days of the date of this decision to proceed to a Formal Hearing. Such a request shall be mailed to the address listed below and must include the Petitioner's name, address, and appeal number:
Utah State Tax Commission
210 North 1950 West
Salt Lake City, Utah 84134
Failure to request a Formal Hearing will preclude any further appeal rights in this matter.
DATED this 13th day of December , 2002.
Administrative Law Judge
BY ORDER OF THE UTAH STATE TAX COMMISSION.
The Commission has reviewed this case and the undersigned concur in this decision.
DATED this 13th day of December , 2002.
Pam Hendrickson R. Bruce Johnson
Commission Chair Commissioner
Palmer DePaulis Marc B. Johnson