CO Code § 44-20-121 (2021)
2021 Colorado Code|Title 44 - Revenue - Regulation of Activities|Article 20 - Sale of Self-Propelled Vehicles|Part 1 - Motor Vehicle Dealers|§ 44-20-121. Licenses - Grounds for Denial, Suspension, or Revocation

  A manufacturer's or distributor's license may be denied, suspended, or revoked on the following grounds:   Material misstatement in an application for a license;    Willful failure to comply with this part 1 or any rule promulgated by the executive director;    Engaging, in the past or present, in any illegal business practice.       A manufacturer representative's license may be denied, suspended, or revoked on the following grounds:   Material misstatement in an application for a license;    Willful failure to comply with any provision of this part 1 or any rule promulgated by the executive director under this part 1;    Having indulged in any unconscionable business practice pursuant to title 4;    Having coerced or attempted to coerce any motor vehicle dealer to accept delivery of any motor vehicle, parts or accessories therefor, or any other commodities or services that have not been ordered by the dealer;    Having coerced or attempted to coerce any motor vehicle dealer to enter into any agreement to do any act unfair to the dealer by threatening to cause the cancellation of the franchise of the dealer;    Having withheld, threatened to withhold, reduced, or delayed without just cause an order for motor vehicles, parts or accessories therefor, or any other commodities or services that have been ordered by a motor vehicle dealer;    Engaging, in the past or present, in any illegal business practice.       A motor vehicle dealer's, wholesale motor vehicle auction dealer's, wholesaler's, buyer agent's, or used motor vehicle dealer's license may be denied, suspended, or revoked on the following grounds:   Material misstatement in an application for a license;    Violation of any of the terms and provisions of this part 1 or any rule promulgated by the board under this part 1;    Having been convicted of or pleaded nolo contendere to any felony, or any crime pursuant to article 3, 4, or 5 of title 18, or any like crime pursuant to federal law or the law of any other state. A certified copy of the judgment of conviction by a court of competent jurisdiction shall be conclusive evidence of the conviction in any hearing held pursuant to this article 20.    Defrauding any buyer, seller, motor vehicle salesperson, or financial institution to the person's damage;    Intentional or negligent failure to perform any written agreement with any buyer or seller;    Failure or refusal to furnish and keep in force any bond required under this part 1;    Having made a fraudulent or illegal sale, transaction, or repossession;    Willful misrepresentation, circumvention, or concealment of or failure to disclose, through whatsoever subterfuge or device, any of the material particulars or the nature thereof required to be stated or furnished to the buyer;    Intentionally publishing or circulating any advertising that is misleading or inaccurate in any material particular or that misrepresents any of the products sold or furnished by a licensed dealer;    Knowingly purchasing, selling, or otherwise acquiring or disposing of a stolen motor vehicle;    For any licensed motor vehicle dealer or used motor vehicle dealer, engaging in the business for which the dealer is licensed without at all times maintaining a principal place of business as required by this part 1 during reasonable business hours;    Engaging in the business through employment of an unlicensed motor vehicle salesperson;    Willfully violating any state or federal law respecting commerce or motor vehicles, or any lawful rule respecting commerce or motor vehicles promulgated by any licensing or regulating authority pertaining to motor vehicles, under circumstances in which the act constituting the violation directly and necessarily involves commerce or motor vehicles;    Representing or selling as a new and unused motor vehicle any motor vehicle that the dealer or salesperson knows has been used and operated for demonstration purposes or which the dealer or salesperson knows is otherwise a used motor vehicle;    Violating any state or federal statute or regulation issued thereunder dealing with odometers;    Selling to a retail customer a motor vehicle that is not equipped or in proper condition and adjustment as required by part 2 of article 4 of title 42 unless the vehicle is sold as a tow away, not to be driven;    Committing a fraudulent insurance act pursuant to section 10-1-128;    Failure to give notice to a prospective buyer of the acceptance or rejection of a motor vehicle purchase order agreement within a reasonable time period, as determined by the board, when the licensee is working with the prospective buyer on a finance sale or a consignment sale.       A wholesaler's or wholesale motor vehicle auction dealer's license may be denied, suspended, or revoked for the selling, leasing, or offering or attempting to negotiate the sale, lease, or exchange of an interest in motor vehicles by the wholesaler or wholesale motor vehicle auction dealer to persons other than motor vehicle dealers, used motor vehicle dealers, or other wholesalers or wholesale motor vehicle auction dealers.    The license of a motor vehicle dealer may be denied, revoked, suspended, or otherwise subject to discipline imposed under this part 1 if an owner is acting as a salesperson without a motor vehicle salesperson license and the owner commits any of the acts or omissions that subject a salesperson's license to denial, revocation, or suspension under subsection (6) of this section.    The license of a motor vehicle salesperson may be denied, revoked, or suspended on the following grounds:   Material misstatement in an application for a license;    Failure to comply with any provision of this part 1 or any rule promulgated by the board or executive director under this part 1;    Engaging in the business for which the licensee is licensed without having in force and effect a good and sufficient bond with corporate surety as provided in this part 1;    Intentionally publishing or circulating any advertising that is misleading or inaccurate in any material particular or that misrepresents any motor vehicle products sold or attempted to be sold by the salesperson;    Indulging in any fraudulent business practice;    Selling, offering, or attempting to negotiate the sale, exchange, or lease of motor vehicles for any motor vehicle dealer or used motor vehicle dealer for which the salesperson is not licensed; except that negotiation with a motor vehicle dealer for the sale, exchange, or lease of new and used motor vehicles, except those vehicles defined in section 42-1-102 (55) as motorcycles and section 33-14.5-101 (3) as off-highway vehicles, by a salesperson compensated for the negotiation by the used motor vehicle dealer for which the salesperson is licensed shall not be grounds for denial, revocation, or suspension;    Representing oneself as a salesperson for any motor vehicle dealer or used motor vehicle dealer when the salesperson is not so employed and licensed;    Having been convicted of or pleaded nolo contendere to any felony, or any crime pursuant to article 3, 4, or 5 of title 18, or any like crime pursuant to federal law or the law of any other state. A certified copy of the judgment of conviction by a court of competent jurisdiction shall be conclusive evidence of the conviction in any hearing held pursuant to this article 20.    Having knowingly purchased, sold, or otherwise acquired or disposed of a stolen motor vehicle;    Employing an unlicensed motor vehicle salesperson;    Violating any state or federal statute or regulation issued thereunder dealing with odometers;    Defrauding any retail buyer to the person's damage;    Representing or selling as a new and unused motor vehicle any motor vehicle that the salesperson knows has been used and operated for demonstration purposes or that the salesperson knows is otherwise a used motor vehicle;    Selling to a retail customer a motor vehicle that is not equipped or in proper condition and adjustment as required by part 2 of article 4 of title 42 unless the vehicle is sold as a tow away, not to be driven;    Willfully violating any state or federal law respecting commerce or motor vehicles, or any lawful rule respecting commerce or motor vehicles promulgated by any licensing or regulating authority pertaining to motor vehicles, under circumstances in which the act constituting the violation directly and necessarily involves commerce or motor vehicles;    Improperly withholding, misappropriating, or converting to the salesperson's own use any money belonging to customers or other persons, received in the course of employment as a motor vehicle salesperson. (6.5) A business disposal license may be denied, suspended, or revoked on the following grounds:   Making a material misstatement in an application for a license;    Violating this part 1 or a rule promulgated by the board under this part 1;    Having been convicted of or pleaded nolo contendere to a felony, a crime under article 3, 4, or 5 of title 18, or any like crime under federal law or the law of another state. A certified copy of the judgment of conviction by a court of competent jurisdiction is conclusive evidence of the conviction in a hearing held under this article 20.    Defrauding a buyer, seller, motor vehicle salesperson, or financial institution to the person's damage;    Intentional or negligent failure to perform any written agreement with a buyer or seller;    Making a fraudulent or illegal sale, transaction, or repossession;    Willful misrepresentation or circumvention of, concealment of, or failure to disclose any of the material particulars required to or the nature of any of the material particulars required to be stated or furnished to the buyer;    Intentionally publishing or circulating an advertisement that is misleading or inaccurate in any material particular or that misrepresents a product sold by or furnished by a licensed dealer;    Knowingly selling, acquiring, or disposing of a stolen motor vehicle;    Willfully violating a state or federal law governing commerce or motor vehicles or a rule governing commerce or motor vehicles promulgated by any licensing or regulating authority governing motor vehicles if the act constituting the violation directly and necessarily involves commerce or motor vehicles;    Representing or selling as new a motor vehicle that the dealer or salesperson knows:   Has been used for and operated for demonstration purposes; or    Is a used motor vehicle;       Violating a state or federal statute, rule, or regulation dealing with odometers;    Selling to a retail customer a motor vehicle that is not equipped as required by or in proper condition and adjustment as required by part 2 of article 4 of title 42 unless the vehicle is sold as a tow-away and not to be driven;    Committing a fraudulent insurance act under section 10-1-128;    Failing to notify a prospective buyer of the acceptance or rejection of a motor vehicle purchase order agreement within a reasonable period, as determined by the board, when the licensee is working with the prospective buyer on a finance sale or a consignment sale;    Failing to maintain in Colorado, when the business disposer is licensed, a place of business that:   Is maintained by the business disposer and is located at a fixed address, other than solely a post office box or an electronic address; and    Employs one or more individuals on a full-time basis.             Any license issued pursuant to this part 1 may be denied, revoked, or suspended if unfitness of the licensee or licensee applicant is shown in the following:   The licensing character or record of the licensee or licensee applicant;    The criminal character or record of the licensee or licensee applicant;    The financial character or record of the licensee or licensee applicant;    Violation of any lawful order of the board.         Any license issued or for which an application has been made pursuant to this part 1 shall be revoked or denied if the licensee or applicant has been convicted of or pleaded no contest to any of the following offenses in this state or any other jurisdiction during the previous ten years:   A felony in violation of article 3, 4, or 5 of title 18 or any similar crime under federal law or the law of any other state; or    A crime involving odometer fraud, salvage fraud, motor vehicle title fraud, or the defrauding of a retail consumer in a motor vehicle sale or lease transaction.       A certified copy of a judgment of conviction by a court of competent jurisdiction of an offense under subsection (8)(a) of this section is conclusive evidence of the conviction in any hearing held pursuant to this article 20.       In any disciplinary hearing, action, or order of the board involving a violation of section 42-6-112 or 42-6-119 (3), it is an affirmative defense that the dealer has taken every reasonable action necessary to deliver or facilitate the delivery of the certificate of title within thirty days. To qualify as having taken every reasonable action to deliver or facilitate the delivery of the certificate of title, the dealer must have, at a minimum:   Processed and mailed any required loan payoffs in a reasonable amount of time;    Contacted the prior lender and taken any actions necessary to obtain a certificate of title or duplicate certificate of title, either of which must be free of liens;    Taken any action necessary to obtain information or signatures from the prior owner necessary to have a new certificate of title issued for the motor vehicle;    Submitted all paperwork that the dealer has obtained to the authorized agent and that is necessary to have a new certificate of title issued for the motor vehicle; and    Corrected any errors in any filings with the department in a reasonable amount of time.       A person whose license issued under this part 1 is revoked or who surrenders a license to avoid discipline is ineligible to apply for a new license under this part 1 for one year after the date of revocation or surrender of the license.      History. Source: L. 2018: Entire article added with relocations,(SB 18-030), ch. 7, p. 65, § 2, effective October 1. L. 2019: (6.5) added,(SB 19-249), ch. 309, p. 2804, § 6, effective August 2.    Editor's note:   This section is similar to former § 12-6-118 as it existed prior to 2018.   ANNOTATION   Annotator's note. The following annotations include cases decided under former provisions similar to this section.   As to unconstitutionality of former subsection (3)(j), specifying indulgence in any unconscionable practice relating to the motor vehicle dealer's, wholesaler's or used motor vehicle dealer's business as a ground for denial, suspension, or revocation of license, see Trail Ridge Ford, Inc., v. Colo. Dealer Licensing Bd., 190 Colo. 82 , 543 P.2d 1245 (1975).   Application of section not overbroad. The application of this section with regard to the refusal to honor any written agreement with a retail buyer is not overbroad. Michael Motors, Inc. v. Colo. Dealer Licensing Bd., 200 Colo. 455 , 616 P.2d 110 (1980), cert. denied, 450 U.S. 995, 101 S. Ct. 1696, 68 L. Ed. 2d 194 (1981).   When accorded its common meaning, phrase “material particulars” of subsection (3)(i) means those details concerning a vehicle for sale that are essential or necessary for a reasonable prospective buyer to know. Phrase is thus readily understandable and is not unconstitutionally vague. Spedding v. Motor Vehicle Dealer Bd., 931 P.2d 480 (Colo. App. 1996).   Plain meaning of words used in subsection (3)(i) clearly requires a finding of “willful” failure to disclose material particulars to a buyer. Thus, board erred in suspending motor vehicle dealer's license without specifically finding conduct was “willful.” Spedding v. Motor Vehicle Dealer Bd., 931 P.2d 480 (Colo. App. 1996).   Term “intentionally” in subsection (3)(k) applies to all elements of conduct proscribed. This paragraph prohibits the intentional publication or circulation of advertising which the motor vehicle dealer knows to be inaccurate or misleading. Bedford Motors, Inc. v. Harris, 714 P.2d 489 (Colo. 1986).   Multiple licenses permitted. The automobile dealer licensing statute, § 12-6-101 , does not expressly permit or disallow a salesman to be licensed to more than one dealer. However, subsection (5)(g) of this section indicates a legislative intent that multiple licensing be permitted. United Buying Serv., Inc. v. State Dept. of Rev., 37 Colo. App. 465, 548 P.2d 1286 (1976).   If the general assembly had intended salesmen to be licensed to one dealer only, the portion of subsection (5)(g) reading “while licensed under only one such dealer ...” would be superfluous, a condition contrary to proper statutory construction. United Buying Serv., Inc. v. State Dept. of Rev., 37 Colo. App. 465, 548 P.2d 1286 (1976).   Finding of enforceability of agreement not prerequisite to imposition of sanction. The enforceability of an agreement need not be found by the Colorado dealer licensing board before it may impose a sanction for violation of subsection (3)(f). Michael Motors, Inc. v. Colo. Dealer Licensing Bd., 200 Colo. 455 , 616 P.2d 110 (1980), cert. denied, 450 U.S. 995, 101 S. Ct. 1696, 68 L. Ed. 2d 194 (1981).   Mistake of law is no defense to culpable actions. The question regarding the contractual nature of a written agreement is a question of law, and it is axiomatic that a mistake of law is no defense to the culpability of a person's actions. Michael Motors, Inc. v. Colo. Dealer Licensing Bd., 200 Colo. 455 , 616 P.2d 110 (1980), cert. denied, 450 U.S. 995, 101 S. Ct. 1696, 68 L. Ed. 2d 194 (1981).   Under subsection (3)(e), the phrase “person's damage” refers to any person suffering damages from fraud. This provision does not require a showing that a vehicle was actually damaged; it merely requires a showing that another person suffered damages. Colo. Dept. of Rev. v. Astro Imports, , 370 P.3d 377 .   “Fraudulent business practice” is not so vague and uncertain as to be unenforceable. Beathune v. Colo. Dealer Licensing Bd., 198 Colo. 483 , 601 P.2d 1386 (1979).   Plain meaning of “fraudulent” and “defrauding,” in subsection (5)(f) and (5)(n) respectively, demonstrate general assembly's intent to require proof of common-law fraud. Colo. Motor Vehicle Dealer Bd. v. Butterfield, 9 P.3d 1148 (Colo. App. 2000).   Proof of damage is not required under subsection (5)(f), which prohibits fraudulent business practices, but is required under subsection (5)(n), which prohibits defrauding of a retail buyer to such person's damage. Colo. Motor Vehicle Dealer Bd. v. Butterfield, 9 P.3d 1148 (Colo. App. 2000).   Subsection (5)(q) does not apply to ordinary theft. Where the licensee was found to have violated criminal laws but not any law or regulation “respecting commerce or motor vehicles” specifically, license suspensions and fines under subsection (5)(q) were not justified. Colo. Motor Vehicle Dealer Bd. v. Brinker, 39 P.3d 1269 (Colo. App. 2001).   Subsection (7)(a)(I) is limited to specific felony convictions, and because such convictions may serve as a basis for delaying but not permanently denying a motor vehicle salesperson license, this section does not make a criminal conviction, without more, the basis for denying a license; therefore, there is no irreconcilable conflict between this section and § 24-5-101 . Smith v. Colo. Motor Vehicle Dealer Bd., 200 P.3d 1115 (Colo. App. 2008).   Conviction for third degree assault of an at-risk adult is a mandatory disqualifying offense under subsection (7)(a)(I) because the felony enhancement for third degree assault is not a separate offense. Colo. Motor Vehicle Dealer Bd. v. Freeman, 2016 CO 44, 375 P.3d 111 .   Applied in Harris v. District Court, 655 P.2d 398 (Colo. 1982).