The Charges (against Dr. Lowrey) Unlawful Tattooing of a Minor Examined

In May 2007, two 17 year old boys came in to the studio and by fraud and deceit obtained one tattoo each.

One boy was only three weeks away from his 18^th birthday (legal age) and the other (his cousin) was only 6 weeks from turning 18.

But they couldn’t wait, so they decided to lie about their age.

We had a new receptionist and they were successful in tricking her into thinking they were adults.

American Fork Detective Lt. Darrin Falslev decided that in spite of his acknowledgement that the boys had committed fraud against the studio that the receptionist, the artists and the owner/operator/manager (me) should be charged with unlawful tattooing of a minor.

The receptionist was charged in June 2007 and though her attorney advised her that he could have the charges dropped, she was so intimidated by Lt. Falselv that she pled guilty to a lesser charge.

Of the artists, both were initially charged, but the charges against one were dropped internally by the city for some reason without even contacting the artist.

The other artist was charged but not served and in May 2008 during a traffic stop was advised of a warrant and is currently involved in the court process on the charge.

In my case, charges were filed in June 07 but not pursued.

Charges were filed again in October 07 and again not pursued.

When I refused to fire a staff member in January 08, I was told by Lt. Falslev that the case was still “open” and threatened with a “resurrection” of the charges against me, which is what happened.

I was charged and finally served in January 2008 and have been in court every month since.

This is the Utah Criminal Code that American Fork is attempting to prosecute me under.

After each section, I have stated why that section is or is not relevant.

76-10-2201. Unlawful body piercing and tattooing of a minor — Penalties.
(1) As used in this section:
(a) “Body piercing” means the creation of an opening in the body, excluding the ear, for the purpose of inserting jewelry or other decoration.
(b) “Consent of a minor’s parent or legal guardian” means the presence of a parent or legal guardian during the performance of body piercing or tattooing upon the minor after the parent or legal guardian has provided reasonable proof of personal identity and familial relationship.
(c) “Minor” means a person younger than 18 years of age who:
(i) is not married; and
(ii) has not been declared emancipated by a court of law.
(d) “Personal identification number” means the number of an apparently valid driver’s license or other picture identification card that expressly states that the person is 18 years of age or older.
(e) “Tattoo” means to fix an indelible mark or figure upon the body by inserting a pigment under the skin or by producing scars.

Section 1 of this code does not apply as it describes (subsection E) tattooing to be the “fix[ing] an indelible mark.

It is uncontested since I was in Detroit, Michigan at the time of the supposed offence that I did not fix an indelible mark under the skin or produce scars on either of these minors.

Lt. Falsev knew that I was in Michigan at the time of the incident and placed phone calls to me there at the time as well as mailing to Michigan the police report.

Utah code does not define operation of a tattoo studio to be identical to the actual act of tattooing as described in this section.

Thus I am exempt from prosecution for Tattooing a Minor under the very definition of the offense in section 1.

(2) A person is guilty of unlawful body piercing of a minor if he performs or offers to perform a body piercing:
(a) upon a minor;
(b) without receiving the consent of the minor’s parent or legal guardian; and
(c) for remuneration or in the course of a business or profession.

Body Piercing is not claimed in the complaint.

(3) A person is guilty of unlawful tattooing of a minor if he performs or offers to perform a tattooing:
(a) upon a minor;
(b) without receiving the consent of the minor’s parent or legal guardian; and
(c) for remuneration or in the course of a business or profession.

While section 3 does open the opportunity for the prosecution to claim that simply operating a business that offers those services suffices to the charge of “offering to perform” this is stretching the interpretation and would if accepted also require all tattoo supply companies, newspapers and phone book companies, cable television companies, etc. who carry tattoo advertising or sell tattoo supplies, the local utility companies who provide the power, water, etc., the landlord who makes the space for tattooing available and the City Management and Zoning Officers who provided a Zoning Category for tattooing (essentially inviting tattooists to offer services in their town and by extension offering such services themselves) all equally liable for “offering” tattoo services as the absent manager of the studio.

I maintain that the common understanding of section 3 would be that the person who “performs or offers to perform” the service is actually doing so in person by an overt act of offering or performing and not through an agent or simply by association with the establishment or person who actually performs the tattoo.

It has not been alleged that I had any contact with these minors before, during or after the service was performed.

I could not have performed or offered to perform a tattoo except in the most general sense, such as in placing a cable television or newspaper or yellow pages ad which ads are directed at legitimate clients and do not constitute offering to a minor and cannot be construed to be performing a tattoo.

All three elements of section 3 require “direct” and “intentional” offering or actual performance of a service also requiring the person “offering”or “performing” to know they are performing an illegal service on a minor.

So, according to the three elements of this section I cannot be guilty of violating this code.

(4) A person is not guilty of Subsection (2) or (3) if the person:
(a) had no actual knowledge of the minor’s age; and
(b) reviewed, recorded, and has maintained a personal identification number for the minor prior to performing an unlawful body piercing or unlawful tattooing.

This section, usually known as the affirmative defense, states that I cannot be guilty (nor can my staff be guilty) of tattooing a minor if subsections a) and b) are true.

Section 4 overwhelmingly excludes me and my staff from prosecution as both elements a & b are satisfied.

a) I had no contact with the minors before, during or after the incident and had no knowledge of the minors age.

Since the minors represented themselves as adults, and attested in writing in three places on the client release that they were adults and manipulated the receptionist in some manner so that she only checked the year and not the month of their birth on their ID’s, no one in the studio knew that the two boys were not adults.

I asked Lt. Falslev if there was any way that the receptionist (who I had never met or spoken with as she was hired and fired while I was out of town) could have been partners with the boys in this action, and he assured me that after his interview with her he was convinced the boys had scammed her and she had no idea they were minors.

I should point out also that the receptionist was brand new. She had finished two days of training and was on her 2^nd day working alone. It takes awhile to get attuned to all the different ways that people try to worm around studio policies.

I pointed out to Lt. Falselv in May 2007 that this is what con artists do, manipulate people into seeing or not seeing contrary what should be self evident.

The police report shows that the boys were charged with communications fraud in this incident and Lt. Falselv reported that both boys pled guilty to that charge.

I respond to this that the victims of the fraud was the studio and staff and that the victim cannot be charged with a crime that they were defrauded (conned) into performing.

And

(b) The studio receptionist had reviewed, recorded and maintained the personal identification number prior to the alleged performance of the tattoo procedure.

Utah code further defines a personal identification number to be a state issued ID or Drivers License Number.

The tattooists were not involved in the filling out of the client release and had no involvement with the producing or verification of ID as that was the job of the receptionist entirely.

Immediately since this incident studio policy was changed to require two staff members (one being the person providing the actual service) to verify in writing (on the release) the legal status of each client.

Thus, section 4 completely exempts me and my staff from prosecution under this code.

(5) (a) A person who violates Subsection (2) or (3) is guilty of a class B misdemeanor.
(b) The owner or operator of a business in which a violation of Subsection (2) or (3) occurs is subject to a civil penalty of $1,000 for each violation.

Section 5 presumes that a violation of subsection 2 or 3 has been proved in court, which in this case it has not.

The court not proved in any case that unlawful tattooing (by definition) did in fact take place.

Since the performance of an unlawful procedure by any member of the studio staff has not been proved in court, it is premature for American Fork to attempt to exact a penalty over an unproven charge.

Additionally, section 4 of this code exempts me and my staff from prosecution even if it had been established in court that such a procedure did take place since it is not “unlawful” if you did not know your client was a minor and had recorded their ID number.

Also, section 5, allows for a “civil penalty” for the operator of a business where an unlawful procedure has been proved.

It does not allow for the operator to be charged criminally in any manner.

Yet in spite of the clear wording “civil penalty”, American Fork has elected to prefer criminal charges.

It also does not suggest in any way that operating an establishment is the same as performing the service.

Yet, American Fork has charged me with tattooing a minor, which charge is strictly defined in the code itself as personally performing a tattoo where pigment is inserted under the skin, which Lt. Falslev admits I did not do.

It would seem to me that the meaning of “civil penalty” would indicate that the victim, once the charge was proved would be required to initiate a civil suit for which they may ask $1000 penalty.

Nowhere does it indicate that the civil penalty allows for criminal charges.

Yet, American Fork has decided in spite of the law being clearly and otherwise stated, that this law advises such criminal charges.

So under section 5 of the code, I cannot be charged with Unlawful Tattooing of a Minor.

No portion of this Utah Law sanctions any of the charges made against me or my staff.

I have pointed this out to Lt. Falselv from the beginning.

I made it a point to be familiar already with the laws in Utah that affect my services, so I already knew when I spoke to him last May (07) that this law did not sanction this complaint.

The entirety of this law directs that the perpetrators must intentionally promote an act that they know to be unlawful. The fact that the minors employed fraud and deception to receive services prohibited by the studio, which is exhibited by their repeated claims in writing that they were 18 years of age or older (on the official release form) and the claim by the investigating officer that the receptionist who was the person who the boys were manipulating was not complicit, was not a participant in the fraud, but was honestly deceived by the boys only proves that the staff and management were not aware that they were violating any law and that they were victims and not perpetrators.

Additionally, written studio policy and ample signage stipulate that services are not performed for minors. The position of the studio is clear.

The charges (and conviction) against the boys proves that the police believed that the boys had violated studio policy by deceiving the receptionist and they knew that the studio was a victim of fraud.

This was all explained to Lt. Falsev (the investigating Detective) in May 2007 before charges were even filed and again in more detail (as above) after charges were filed (1^st of 3 filings) in June 2007.

The current 3^rd filing of charges was retaliatory (I have the threat by Lt. Falselv clearly made on tape recording) in January 2008 when I refused to fire a staff member at his request. At that time the Detective threatened to “resurrect” the charges from the previous May if I did not cooperate, and of course a week later I was charged.

Interestingly, the receptionist who also did not tattoo anyone and did not offer to tattoo anyone was charged and though her public defender told her that she had not committed a crime was so intimidated by Lt. Falsev – who is very loose with his threats – pled guilty to a lesser charge which she also did not commit. (June 2007)

Meanwhile the tattooists have been charged but never served, even though the police have been given their addresses (also on tape recording) and advised of their work schedule on more than three occasions so that they could be served.

Our studio is only two blocks away from the police station and located on the main street in town. Patrol officers drive past at least 20 – 50 times per day. It would not be too hard for them to stop and drop off papers. According to the court, the person being served does not even have to be there. The summons can be left for them. At one point Lt. Falselv insisted that one of our artists walk over to the police station to be served there, the Lt. offering to meet him at the front door of the police station to make it more convenient for him.

One tattooist who no longer is on staff was finally, very recently served during a traffic stop but has yet to go to trial. (his arraignment was June 3, 2008) So the supposed crime has yet to be proved meaning that I cannot be charged (as the owner/operator) for something that has yet to be legally established.

Also, it is anticipated, especially since the prosecutor won’t want to try to prove the charge in court, that if the case is not dismissed, which I expect to be most likely, especially since the same prosecutor (City Attorney Tucker Hansen) is on both his case and my case, but that if it is not dismissed, that it certainly will be reduced to a different charge, meaning again that the charge of Unlawful Tattooing of a Minor will not be established, meaning that I cannot be charged as the Owner/Operator of an establishment where such crime took place.

Basically, there is just no way that the City of American Fork can establish that my staff or myself were in violation of any law or responsible in any manner for the bad behavior of these two boys.

It has been contended from the beginning that these false charges are nothing more than an attempt by local government to intimidate and harass a religious practice that leading members of the local government personally do not agree with.

This is based on their perspective of the Mormon Church’s bias against tattoos and piercing. Since American Fork is claimed to be about 97% Mormon the Mayor and others feel entitled to demand that all persons who live, work, visit, shop or pass through American Fork align their every action and thought with that supposed majority perspective.

Those members admitting to this so far have been Mayor Thompson, Police Chief Call and Lt. Falselv (though Lt. Falsev claims that he has wanted to get a tattoo from us – I guess he is confused and conflicted – but he is certainly determined to harass us while claiming to be our pal) (How can you tell when a cop is lying?)

I suppose that I should also point out that in over 20 years of offering tattoo and piercing services this is the first time that we have ever had a complaint (criminal or civil) made against us.

The police have gone overboard to make what should have been a family matter into a criminal one and have misdirected the offense entirely toward the victims.

And since the defendant is only an agent of Whole Life Ministries (A Utah Non-Profit Religious Corporation) (Happy Valley Tattoo being an registered assumed name) which performs tattoos and piercing as a spiritual practice and as it is obvious to the common man that no laws were violated, and since the government makes no effort to hide their disdain based on their own religious perspective, that this is nothing less than religion on religion discrimination practiced by certain members of local government in an effort to drive out of town a minority religion that those government leaders do not approve of.

They would be hard put to claim that it is tattoos in general and not religion that drives their disapproval since they paved the way for tattooing by creating a zoning classification specifically aimed at inviting tattoo establishments to locate here.

Additionally, Mayor Thompson has stated that his religion does not believe in what we do and that he does not think we belong in his town.