Colorado § 44-20-125 - New, reopened, or relocated dealer - notice required - grounds for refusal of dealer license - definitions - rules.

§ 44-20-125. New, reopened, or relocated dealer - notice required - grounds for refusal of dealer license - definitions - rules.

(1) No manufacturer shall establish an additional motor vehicle dealer, reopen a previously existing motor vehicle dealer, or authorize an existing motor vehicle dealer to relocate without first providing at least sixty days' notice to all of its franchised dealers within whose relevant market area the new, reopened, or relocated dealer would be located. The notice must state:

(a) The specific location at which the additional, reopened, or relocated motor vehicle dealer will be established;

(b) The date on or after which the manufacturer intends to be engaged in business with the additional, reopened, or relocated motor vehicle dealer at the proposed location; and

(c) The identity of all motor vehicle dealers who are franchised to sell the same line-make of vehicles with licensed locations in the relevant market area where the additional, reopened, or relocated motor vehicle dealer is proposed to be located.

(2) A manufacturer shall approve or disapprove of a motor vehicle dealer facility's initial site location, relocation, or reopening request within sixty days after the request or after sending the notice required by subsection (1) of this section to all of its franchised dealers, whichever is later.

(3) Subsection (1) of this section shall not apply to:

(a) The relocation of an existing dealer within two miles of its current location; or

(b) The establishment of a replacement dealer, within two years, either at the former location or within two miles of the former location.

(4) As used in this section:

(a) "Manufacturer" means a motor vehicle manufacturer, distributor, or manufacturer representative.

(b) "Relevant market area" means the greater of the following:

(I) The geographic area of responsibility defined in the franchise agreement of an existing dealer; or

(II) The geographic area within a radius of ten miles of any existing dealer of the same line-make of vehicle as the proposed additional motor vehicle dealer.

(5) (a) An existing motor vehicle dealer adversely affected by a reopening or relocation of an existing same line-make motor vehicle dealer or the addition of a same line-make motor vehicle dealer may, within ninety days after receipt of the notice required in subsection (1) of this section, file a legal action in a district court of competent jurisdiction or file an administrative complaint with the executive director to prevent or enjoin the relocation, reopening, or addition of the proposed motor vehicle dealer. An existing motor vehicle dealer is adversely impacted if:

(I) The dealer is located within the relevant market area of the proposed relocated, reopened, or additional dealership described in the notice required in subsection (1) of this section; or

(II) The existing dealer or dealers of the same line-make show that, during any twelve-month period of the thirty-six months preceding the receipt of the notice required in subsection (1) of this section, the dealer or dealers, or a dealer's predecessor, made at least twenty-five percent of the dealer's retail sales of new motor vehicles to persons whose addresses are located within ten miles of the location of the proposed relocated, reopened, or additional dealership.

(b) The executive director shall refer a complaint filed under this section to an administrative law judge with the office of administrative courts for final agency action.

(c) In any court or administrative action, the manufacturer has the burden of proof on each of the following issues:

(I) The change in population;

(II) The relevant vehicle buyer profiles;

(III) The relevant historical new motor vehicle registrations for the line-make of vehicles versus the manufacturer's actual competitors in the relevant market area;

(IV) Whether the opening of the proposed additional, reopened, or relocated motor vehicle dealer is materially beneficial to the public interest or the consumers in the relevant market area;

(V) Whether the motor vehicle dealers of the same line-make in the relevant market area are providing adequate representation and convenient customer care, including the adequacy of sales and service facilities, equipment, parts, and qualified service personnel, for motor vehicles of the same line-make in the relevant market area;

(VI) The reasonably expected market penetration of the line-make, given the factors affecting penetration; and

(VII) Whether the additional, reopened, or relocated dealership is reasonable and justifiable based on expected economic and market conditions within the relevant market area.

(d) In any court or administrative action, the motor vehicle dealer has the burden of proof on each of the following issues:

(I) Whether the manufacturer has engaged in any action or omission that, directly or indirectly, denied the existing motor vehicle dealer of the same line-make the opportunity for reasonable growth or market expansion;

(II) Whether the manufacturer has coerced or attempted to coerce any existing motor vehicle dealer or dealers into consenting to additional or relocated franchises of the same line-make in the community or territory or relevant market area; and

(III) The size and permanency of the investment of and obligations incurred by the existing motor vehicle dealers of the same line-make located in the relevant market area.

(e) (I) In a legal or administrative action challenging the relocating, reopening, or addition of a motor vehicle dealer, the district court or administrative law judge shall make a determination of whether the relocation, reopening, or addition of a motor vehicle dealer is, based on the factors identified in subsections (5)(c) and (5)(d) of this section:

(A) In the public interest; and

(B) Fair and equitable to the existing motor vehicle dealers.

(II) The district court or the executive director shall deny any proposed relocating, reopening, or addition of a motor vehicle dealer unless the manufacturer shows by a preponderance of the evidence that the existing motor vehicle dealer or dealers of the same line-make in the relevant market area of the proposed dealership are not providing adequate representation of the line-make motor vehicles. A determination to deny, prevent, or enjoin the relocating, reopening, or addition of a motor vehicle dealer is effective for at least eighteen months.

Source: L. 2018: Entire article added with relocations, (SB 18-030), ch. 7, p. 79, § 2, effective October 1.

Editor's note: This section is similar to former § 12-6-120.3 as it existed prior to 2018.

ANNOTATION

Annotator's note. Since § 44-20-125 is similar to § 12-6-120.3 as it existed prior to its 2018 relocation to this section, a relevant case construing that provision has been included in the annotations to this section.

The 2017 amendment to the definition of "relevant market area" does not violate the contracts clause of either the federal or state constitution. The amendment is an evolution of the existing scheme for regulating the relationship between dealers and car manufacturers. Because the 2017 amendment is not a substantial impairment of the contractual relationships between dealers and manufacturers, it does not violate the contracts clause of either the federal or state constitution. DC Auto., Inc. v. Kia Motors Am., Inc., 411 F. Supp. 3d 1137 (D. Colo. 2019) (decided under former § 12-6-120.3 as amended in 2017 and prior to its 2018 relocation to this title 44).

Application of the 2017 amendment does not violate article II, § 11 of the state constitution. Car manufacturer's purported right to establish a proposed dealership at a certain location is not based on a contract between it and dealers; rather, it relies on the continued existence of the regulatory scheme that places the location of a proposed dealership outside dealers' relevant market area. Moreover, regulation of the relationship between manufacturers and dealers is within the longstanding province of the legislature. Because manufacturer's contractual expectation relied on the continued validity of the regulatory scheme in an area within traditional legislative power, manufacturer has no vested right to establish the proposed dealership. DC Auto., Inc. v. Kia Motors Am., Inc., 411 F. Supp. 3d 1137 (D. Colo. 2019) (decided under § 12-6-120.3 as amended in 2017 and prior to its 2018 relocation to this title 44).

The executive director is not required to hold a formal adjudicatory proceeding before issuing a final agency action. W. Colo. Motors v. Gen. Motors, LLC, 2016 COA 103, 411 P.3d 1068.

A letter from the executive director informing a petitioner that the executive director finds no basis to proceed with an investigation, issue a cease-and-desist order, or take other action constitutes final agency action. W. Colo. Motors v. Gen. Motors, LLC, 2016 COA 103, 411 P.3d 1068.

Review of a final agency action falls within the court of appeals' exclusive jurisdiction. W. Colo. Motors v. Gen. Motors, LLC, 2016 COA 103, 411 P.3d 1068.