Brent Brown Dealerships v. Tax Commission, Motor Vehicle Enforcement Division

THORNE, Judge

(concurring in the result):

¶ 34 I concur in both the result reached by the majority opinion and its analysis, except for its interpretation of the word “offense” as used in Utah Code section 41-3-702(2). See Utah Code Ann. § 41-3-702(2) (2005). I do not believe that Brent Brown’s arguments in this case necessitate a formal and final interpretation of that term, or the underlying prohibition on licensed dealers assisting unlicensed salespersons in unlawful activity, see id. § 41-3-210(6) (2005). Accordingly, I would decline to interpret either statute at this time and instead reserve the issue until a question of statutory interpretation is presented to us directly.

¶ 35 My objection to the majority opinion’s approach is that Brent Brown does not challenge the Commission’s interpretation of the statutory terms as incorrect — indeed, Brent Brown characterizes the Commission’s interpretation as reasonable. Rather, Brent Brown’s argument regarding the statutory terms is that there are multiple reasonable interpretations, and that this multitude of possibilities inherently grants the Commission discretion to decrease the civil penalties established under section 41-3-702. Brent Brown’s contention in this regard is easily disposed of as a matter of law without reach*306ing the question of either statute’s actual meaning.

¶36 The existence of multiple reasonable interpretations of a statute does not create discretion in an interpreting agency. Rather, such multiple interpretations render a statute ambiguous. See Li v. Zhang, 2005 UT App 246,¶ 8, 120 P.3d 30 (“[The] existence of two reasonable, yet conflicting, interpretations of [a] statute renders it ambiguous.”), cert. granted, 124 P.3d 634 (Utah 2005); see also Derbidge v. Mutual Protective Ins. Co., 963 P.2d 788, 791 (Utah Ct.App.1998) (“ ‘Ambiguous’ means capable of ‘two or more plausible meanings.’ ” (quotations and citation omitted)). Ambiguity in a statute allows us to look beyond a statute’s plain language and take into account legislative history and public policy considerations, but the ultimate result is the determination of a single, correct interpretation of the statute.1 See Li, 2005 UT App 246 at ¶ 8, 120 P.3d 30.

¶ 37 Thus, even if one or more statutory terms determining Brent Brown’s liability are ambiguous, the licensing and civil penalty scheme adopted by the legislature has only one correct interpretation, to be determined as a matter of law. The Commission either correctly divined that interpretation or it did not, but either way there is no discretion on the part of the Commission to interpret the statute as it sees fit depending on the circumstances before it.2 I would dispose of Brent Brown’s discretion argument merely by noting that ambiguity does not create discretion, without reaching the question of what the statutes actually mean.

¶ 38 Although I would not reach the question, I do not necessarily disagree with the majority opinion’s interpretation of section 41-3-702 and, by implication, section 41-3-210. I cannot join, however, in the assumption that the meaning of the licensing and civil penalty scheme as a whole is so clear as to allow us to decide the issue sua sponte based on the plain language of the statutes. The majority opinion will bind both the Commission and its licensees to a statutory interpretation made by this court without the benefit of reasoned argument and authority from adverse parties. I can envision arguments for alternative interpretations that may pi'ove persuasive if properly supported. Although I express no opinion on whether any of these arguments might prevail if properly presented, I point them out as potential issues that are foreclosed by the majority opinion’s unnecessary interpretation of the licensing statutes.

¶39 For example, the majority opinion’s interpretation would seem to bar the Commission from pursuing violations where a dealer employs an unlicensed salesperson who attempts, but fails, to complete the sale of a vehicle. The actual violation at issue is “assisting] an unlicensed ... salesperson in unlawful activity through active or passive participation in sales, or by allowing use of his facilities or dealer license number, or by any other means.” Utah Code Ann. § 41-3-210(6) (emphasis added). A person acts as a salesperson if he or she is employed by a dealer “to sell, purchase, or exchange or to negotiate for the sale, purchase, or exchange of motor vehicles,” id. § 41-3-102(25) (2005) (emphasis added), and those acts are unlawful unless the person is licensed as a salesperson, see id. § 41-3-201(2) (2005). Thus, in the appropriate circumstances, the Commission might argue that it is entitled to seek a civil penalty when an unlicensed sales*307person employed by a dealer merely attempts to sell a motor vehicle.3

¶ 40 From the licensee’s perspective, there appears to be at least an argument that a dealer’s uninterrupted employment of multiple unlicensed salespersons at a single dealership might constitute but a single violation. See id. § 68-3-12(1) (2004) (stating as a general rule of statutory construction that the words in the singular include the plural unless such a construction would be inconsistent with the manifest intent of the legislature or repugnant to the context of the statute). Similarly, the Commission’s decision, affirmed by the majority opinion, to charge first, second, and third offenses in a single action also seems as if it could present legal arguments not raised by Brent Brown.4 See id. § 41^3-702(2).

¶ 41 Of the two positions presented to us on appeal, I find the Commission’s more persuasive. And, in the absence of reasoned argument to the contrary, I am willing to accept the Commission’s interpretation of the licensing statutes as supporting a separate violation for each unlicensed salesperson that sold a vehicle in this case.5 I do not, however, think it wise to decide the meaning of the statutes without the benefit of briefing directly addressing the issue. Rather, I would dismiss Brent Brown’s argument that statutory ambiguity creates agency discretion as meritless on its face and decline to interpret the statutes at this time.

. The violations at issue in this matter are statu-toiy, and "[a]bsent a grant of discretion, an agency's interpretation or application of statutory terms should be reviewed under the correction-of-error standard.” Bonneville Asphalt v. Labor Comm’n, 2004 UT App 137,¶ 4, 91 P.3d 849 (quoting Esquivel v. Labor Comm’n, 2000 UT 66,¶ 14, 7 P.3d 777). There is no grant of agency discretion here, and thus, we would ordinarily review a party's challenge to the agency’s interpretation of statutory terms for correctness. See id. (" '[M]atters of statutory construction are questions of law that are reviewed for correctness.' " (quoting Esquivel, 2000 UT 66 at ¶ 13, 7 P.3d 777)).

. This is not to suggest that- the Commission lacks discretion in making charging decisions under the licensing scheme. Like any other plaintiff or prosecutor, the Commission may decide to charge fewer or lesser violations than the evidence might support. However, any successful charge must ultimately satisfy the single legal definition of the violation at issue.

. At the other end of the spectrum, the Commission might argue for a separate civil penalty for each vehicle actually sold, a result that was initially contemplated in this matter.

. For example, section 41-3-702(2)(b) states that "[w]hen determining under this section if an offense is a second or subsequent offense, only prior offenses committed within the 12 months prior to the commission of the current offense may be considered.” Utah Code Ann. § 41-3-702(2)(b). On its face, the Commission’s decision reflects that Brent Brown's violations occurred from June 2002 through February 2004, a period exceeding eighteen months. Depending on the actual record of offenses established by the Commission, it would seem that a party in Brent Brown's position should be able to argue the effect of the statute’s twelve-month cap on considering prior offenses.

. As noted above, it is within the discretion of the Commission to charge fewer violations than the evidence might support. Thus, I do not find the fact that the Commission limited itself to a particular theoty of violation in this case, and the ALJ accepted that theory as an appropriate use of the statutes, to have any bearing on the proper interpretation of the statutes or the ultimate limits of the Commission's authority to charge multiple violations.