99-0716

MISCELLANEOUS

Signed 6/6/00

BEFORE THE UTAH STATE TAX COMMISSION

____________________________________

PETITIONER’S, ) FINDINGS OF FACT,

) CONCLUSIONS OF LAW,

Petitioners, ) AND FINAL DECISION

)

v. ) Appeal Nos. 99-0716

) 99-0757

MOTOR VEHICLE DIVISION OF )

THE UTAH STATE TAX ) Tax Type: Miscellaneous

COMMISSION, )

) Judge: Phan

Respondent. )

_____________________________________

Presiding:

R. Bruce Johnson, Commissioner

Jane Phan, Administrative Law Judge

Appearances:

For Petitioner: PETITIONER

PETITIONER

PETITIONER

For Respondent: Tim Bodily, Assistant Attorney General

Vicki Johnson

STATEMENT OF THE CASE

This matter came before the Utah State Tax Commission for a Formal Hearing on April 11, 2000. Based upon the evidence and testimony presented at the hearing, the Tax Commission hereby makes its:

FINDINGS OF FACT

1. Petitioners are appealing Respondent's order to surrender the personalized license plates containing the letters "CPTNIP" and "MRSNIP."

2. Sometime prior to 1983, Petitioner PETITIONER came to be known by the nickname Captain Nip. He was originally given the nickname by friends while vacationing at Lake Powell as they joked that he liked to have a "nip" or two, as in a drink. About ten years ago PETITIONER’S brother purchased for him as a gift the personalized licence plate "CPTNIP."

3. Sometime around 1993, PETITIONER applied for and was issued the license plate bearing the letters "MRSNIP."

4. Petitioners commonly referred to themselves in correspondences with friends as the "nip family."

5. Sometime in 1999, Petitioners applied for the personalized license plate with the letters "NIPBUS." It was their intent to use this license plate on their motor home, which they explained they often took to football tailgate parties. Respondent denied this requested combination determining that it had a derogatory connotation.

6. The Dictionary of American Slang, published in 1975 by Thomas Y. Crowell, provides the definition of Nip as follows:

[derog.] A Japanese. 1942: "A bunch of Nips." Times, Feb. 9, 23. Some W. W. II use. From "Nippon."

7. Vicki Johnson, a long term employee and supervisor in the Motor Vehicle Division, testified that she was aware of the derogatory connotation associated with the word NIP. She explained that there were several levels for review of personalized licence plates in the Motor Vehicle Division and after such review the Division determined that it should deny Petitioners request for NIPBUS. It was from this process that the plates at issue, CPTNIP and MRSNIP came to the attention of Respondent and Respondent issued the request to Petitioners to surrender the plates. Respondent had received no complaint concerning the plates CPTNIP or MRSNIP. According to Respondent's witness this was the first time Respondent had requested surrender of unexpired, personalized, license plates when no complaint was filed.

8. Petitioners testified that no one had ever complained to them that their licence plates were derogatory, including the two Asian Americans with whom they were acquainted. Petitioners did not know if either of their Asian American acquaintances were Japanese.

APPLICABLE LAW

Utah law provides for personalized license plates with the limitation set out in Utah Code Ann. '41-1a-411:

(1) An applicant for personalized license plates or renewal of the plates shall file an application for the plates in the form and by the date the division requires, indicating the combination of letters, numbers, or both requested as a registration number.

(2) The division may refuse to issue any combination of letters, numbers, or both that may carry connotations offensive to good taste and decency or that would be misleading.

The Tax Commission has adopted a rule to determine when a combination of letters or numbers is offensive or misleading. Utah Admin. Rule R873-22M-34 states in pertinent part:

A. The personalized plate is a non-public forum . . .

B. Pursuant to Section 41-1a-411(2), the division may not issue personalized license plates in the following formats:

1. Combination of letters, words, or numbers with any connotation that is vulgar, derogatory, profane, or obscene.

. . .

4. Combinations of letters, words, or numbers that express contempt, ridicule, or superiority of a race, religious, deity, ethnic heritage, gender, or political affiliation.

C. If the division denies a requested combination, the applicant may request a review of the denial, in writing, within 15 days from the date of notification. The request must be directed to the Director of the Motor Vehicle Division and should include a detailed statement of the reasons why the applicant believes the requested license plates are not offensive or misleading.

D. The director shall review the format for connotations that may reasonably be detected through linguistic, numerical, or phonetic modes of communication. The review may include:

1. translation from foreign languages;

2. an upside down or reverse reading of the requested format;

3. the use of references such as dictionaries or glossaries of slang, foreign language, or drug terms.

E. The director shall consider the applicant's declared definition of the format, if provided.

F. If the requested format is rejected by the director, the division shall notify the applicant in writing of the right to appeal the decision through the appeals process outlined in Tax Commission rule R861-1-4A.

G. If, after issuance of a personalized license plate, the commission becomes aware through written complaint that the format may be prohibited under B., the division shall again review the format.

H. If the division determines pursuant to F. that the issued format is prohibited, the holder of the plates shall be notified in writing and directed to surrender the plates. This determination is subject to the review and appeal procedures outlined in B. through E.

I. A holder required to surrender license plates shall be issued a refund for the amount of the personalized license plate application fee and for the prorated amount of the personalized license plate annual renewal fee, or shall be allowed to apply for replacement personalized license plates at no additional cost.

J. If the holder of plates found to be prohibited fails to voluntarily surrender the plates within 30 days after the mailing of the notice of the division's final decision that the format is prohibited, the division shall cancel the personalized license plates and suspend the vehicle registration.

The Utah Supreme Court has articulated a test to determine whether plates should be revoked pursuant to Utah Administrative Rule R873-22M-34. The case before the Supreme Court was an appeal of a Tax Commission order, in which the Tax Commission failed to revoke license plates with the combinations of "REDSKIN" and "REDSKNS." In PETITIONER v. Motor Vehicle Div. of Utah State Tax Comm'n., 361 Utah Adv. Rep. 56 (1999), the Court stated:

The only reasonable standard that may be applied is that of the objective, reasonable person. In other words, under rule 873-22M-34 the Commission had to determine, in light of all the evidence presented, whether an objective, reasonable person would conclude that the term "REDSKIN" contains any vulgar, derogatory, profane, or obscene connotation, or expresses contempt, ridicule, or superiority of race or ethnic heritage.

CONCLUSIONS OF LAW

1. Broad discretion was given to the Tax Commission by the legislature in Utah Code Ann. '41-1a-411, to determine when a personalized license plate was offensive or misleading. In furtherance of the directive given by the legislature, the Tax Commission adopted a rule to help establish when a personalized license plate would not be issued or should be revoked. Although the rule does not expressly state that the Division can revoke a plate prior to its expiration, on its own initiative, there is certainly no prohibition that would bar the Division's actions in this instance in revoking the plates at issue when the Division determined the plates to be in violation of the rule and statute after their issuance and renewal.

2. As the Utah Supreme Court has instructed in PETITIONER v. Motor Vehicle Div. of Utah State Tax Comm'n., 361 Utah Adv. Rep. 56 (1999), the Commission must determine whether a reasonable, objective person would conclude that the contents of the licenses plates at issue have "any connotation" that is derogatory. From the evidence presented, although it may not be the most common connotation, there is clearly a derogatory connotation for the word Nip. The personalized license plate is a non-public forum. It is an official issuance by the state of Utah that is generally viewed by a large number of people on a daily basis. Respondent should be conscious of this fact and cautious about the plates that it issues.

DECISION AND ORDER

Based upon the foregoing, the Tax Commission denies Petitioners' appeal and orders that Petitioners surrender the license plates CPTNIP and MRSNIP.

DATED this _6____ day of __June__________, 2000.

_____________________

Jane Phan

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 __6___ day of __June__________, 2000.

Pam Hendrickson R. Bruce Johnson

Commission Chair Commissioner

Palmer DePaulis Marc B. Johnson

Commissioner Commissioner

Notice of Appeal Rights: You have twenty (20) days after the date of this order to file a Request for Reconsideration with the Tax Commission Appeals Unit pursuant to Utah Code Ann. '63-46b-13. A Request for Reconsideration must allege newly discovered evidence or a mistake of law or fact. If you do not file a Request for Reconsideration with the Commission, this order constitutes final agency action. You have thirty (30) days after the date of this order to pursue judicial review of this order in accordance with Utah Code Ann. ''59-1-601 and 63-46b-13 et. seq.