Opinion
No. 75-038
Decided April 1, 1976.
Action challenging validity of regulation of dealer licensing board that declared automobile purchaser referral business to be a motor vehicle salesman and challenging regulation prohibiting a salesman from being licensed to more than one dealer.
Affirmed in Part, Reversed in Part.
1. AUTOMOBILES — Business — Refers Auto Purchasers — Licensed Dealers — Within Definition — "Motor Vehicle Salesman" — Statute. In arrangement where plaintiff is in business of referring prospective automobile purchasers to licensed Colorado dealers for a fee to be paid by dealer if a car is purchased, the plaintiff is a "motor vehicle salesman" and is "employed" by dealers as those terms are defined in statute regulating motor vehicle dealer licensing.
2. Regulation — Prohibit — Salesman — Multiple Licensing — Beyond Scope of Authority — Invalid. Since legislative intent indicates that multiple licensing be permitted, the regulation of motor vehicle dealer licensing board disallowing motor vehicle salesman from being licensed to more than one dealer at any one time is beyond the scope of the authority delegated to the licensing board and is therefore invalid.
Appeal from the District Court of the City and County of Denver, Honorable Clifton A. Flowers, Judge.
Sonheim Helm, Phillip A. Less, for plaintiffs-appellants.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Arthur G. Staliwe, Special Assistant Attorney General, for defendants-appellees.
Division III.
Plaintiffs, United Buying Service, Inc., and Lyle R. Kesinger (United), appeal from a judgment that declared valid a regulation of the Colorado Dealer Licensing Board (Board), and denied United's request that the Board be enjoined from enforcing certain orders and regulations issued relative thereto. We affirm in part and reverse in part.
United is engaged in the business of referring prospective automobile purchasers from member groups to licensed Colorado dealers for a fee. The purchaser informs United of the make of the auto desired, and United gives the customer a "purchase certificate" directing the customer to a dealer handling that make of auto. There is no obligation to purchase. However, if a car is purchased, the dealer pays United $30. Through United's arrangement with its various dealers, the customer is able to purchase an auto for a basic price of the dealer's cost plus $100.
In 1972, the Board adopted the position that United was a motor vehicle salesman and issued a letter to all new car dealers informing them of this position and ordering them to cease dealing with United or face the loss of their license, under § 12-6-118(3)(n), C.R.S. 1973, for engaging in business through employment of an unlicensed motor vehicle salesman. Thereafter, United applied for salesmen licenses with each of its dealers. Relying on Board Regulation 13-11-8(1)(d), which prohibits a salesman from being licensed to more than one dealer at a time, the Board refused to issue more than one license to United.
United petitioned the Board for relief, but the Board affirmed its position that United was a motor vehicle salesman and affirmed its regulation prohibiting multiple licenses. The trial court affirmed the Board's action and this appeal followed.
I.
United contends the court erred in ruling that United is a "motor vehicle salesman." That term is defined as any person who:
"For a salary, commission, or compensation of any kind, is employed either directly or indirectly, regularly or occasionally, by any motor vehicle dealer . . . to sell, purchase, or exchange or to negotiate for the sale, purchase, or exchange of motor vehicles." Section 12-6-102(14), C.R.S. 1973. (emphasis added)
The statute is applicable to natural persons, firms, corporations, co-partnerships, or associations. Section 12-6-102(15), C.R.S. 1973.
Although United argues that it is not "employed" by any dealers, we hold that the legislature intended that the term "employed," as used in § 12-6-102(14), C.R.S. 1973, not be restricted to technical employer-employee relationships. Instead, by including indirect and occasional employment, the legislature intended to embrace all persons whose services are utilized in the furtherance of the business of the dealer. See City of Watertown v. Meseberg, 82 S.D. 250, 144 N.W.2d 42; Stephens v. Cotton Producers Ass'n., 117 F. Supp. 517 (N.D. Ga.) United's arrangement with its dealers is clearly within such definition. United receives compensation ($30) for its referral and it "negotiates" the sale by arranging the terms of the bargain, i.e., dealer's costs plus $100. See Dunklee v. Shepherd, 145 Colo. 197, 358 P.2d 25. Accordingly, United is a motor vehicle salesman as defined in the statute.
II.
United next contends that even if it is a "motor vehicle salesman," the court erred in upholding Board Regulation 13-11-8(1)(d), which provides, in pertinent part: "No salesman shall be licensed to more than one dealer at any time. . ." The Board concedes that the regulation will put United out of business "as it is presently operating," because it needs to operate with different automobile dealers.
The automobile dealer licensing statute, § 12-6-101 et seq., C.R.S. 1973, does not expressly permit or disallow a salesman to be licensed to more than one dealer. However, § 12-6-118(5)(g), C.R.S. 1973, indicates a legislative intent that multiple licensing be permitted. This section provides that a salesman's license may be denied, revoked, or suspended for "having sold motor vehicles for more than one motor vehicle dealer . . . while licensed under only one such dealer. . . ." (emphasis added) If the legislature had intended salesmen to be licensed to one dealer only, the emphasized portion of this subsection would be superfluous, a condition contrary to proper statutory construction, and one we decline to create. McMillin v. Colorado, 158 Colo. 183, 405 P.2d 672; Adams-Arapahoe County School District v. Wolfe, 30 Colo. App. 117, 489 P.2d 348. Furthermore, if the legislature had intended to prohibit multiple licenses, it would have done so as it did relative to real estate salesmen where the issuance of more than one license to a real estate salesman is expressly prohibited. Section 12-61-109(4), C.R.S. 1973.
Consequently, the regulation purporting to create such limitation is beyond the scope of the authority delegated to the Board and is therefore invalid. Dixon v. Zick, 179 Colo. 278, 500 P.2d 130; see also § 24-4-103(8)(a), C.R.S. 1973.
Our conclusion as to the validity of the regulation obviates the necessity of discussing United's other contentions.
Judgment affirmed in part, reversed in part, and the cause is remanded to the trial court with directions to enter a judgment not inconsistent herewith.
JUDGE PIERCE and JUDGE SMITH concur.