Bedford Motors, Inc. v. Harris

714 P.2d 489, 1986 Colo. LEXIS 513
CourtSupreme Court of Colorado
DecidedFebruary 24, 1986
DocketNo. 84SA403
StatusPublished
Cited by3 cases

This text of 714 P.2d 489 (Bedford Motors, Inc. v. Harris) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bedford Motors, Inc. v. Harris, 714 P.2d 489, 1986 Colo. LEXIS 513 (Colo. 1986).

Opinion

KIRSHBAUM, Justice.

The plaintiff, Bedford Motors, Inc. (Bed-ford), appeals the district court’s affirmance of an order of the Colorado Motor Vehicle Dealer Licensing Board (the Board) suspending the plaintiffs license for ten days for violation of section 12-6-118(3)(k), 5 C.R.S. (1978).1 On appeal, Bedford raises three arguments: (1) the statute is unconstitutionally vague; (2) the district court erred in interpreting the statute; and (3) the sanctions imposed by the Board were arbitrary and capricious. We reject Bed-ford’s arguments and affirm the district court’s order.

I

In March 1980, the Board issued an order to show cause to Bedford alleging violations of section 12-6-118(3)(e), (k) and (o), 5 C.R.S. (1978),2 and regulations 12-6-118(3)(k)(21) and (23) of the Board.3 The show cause order alleged that from April 1978 to March 1980, Bedford advertised vehicles for sale which were not available for sale or were only available at a price higher than the advertised price.

On December 30, 1980, a hearing was conducted. Bedford’s president, Michael Flannery, was the only witness at that proceeding. He testified that Bedford had not intended to mislead anyone with the newspaper advertisements in question and that those advertisements had not been kept current due to “laziness.” He admitted that the specific cars referred to in the advertisements were under contract or otherwise sold at the time the advertisements were published. He also admitted that these cars were sold at a price higher than advertised and that the advertised price on some of the cars was increased by dealer and handling charges.

The hearing officer concluded that Bed-ford had violated section 12-6-118(3)(k)4 by intentionally publishing misleading information, construing section 12-6-118(3)(k) to require intent to publish rather than intent [491]*491to mislead. The hearing officer also found that the Bedford employee responsible for placing the advertisements intended to publish misleading advertisements.

The Board adopted the findings, conclusions and recommendations of the hearing officer and ordered Bedford’s license suspended for ten days. The Board then ordered the final seven days of the suspension to be held in abeyance pending satisfactory completion of a one-year probationary period. Bedford sought judicial review of that ruling, and on October 1, 1983, the district court affirmed the Board’s order. The district court concluded that section 12-6-118(3)(k) required only an intent to publish, rather than an intent to mislead, indicating that even a negligently misleading advertisement would violate section 12- _ 6-118(3)(k). The district court also found that the record established that Bedford had intended to mislead potential customers.

II

Section 12-6-118(3)(k) provides in pertinent part as follows:

A motor vehicle dealer’s ... license may be denied, suspended, or revoked on the following grounds:
(k) To intentionally publish or circulate any advertising which is misleading or inaccurate in any material particular....

The district court concluded that the word “intentionally,” as used in section 12-6-118(3)(k), modifies only the words “publish or circulate.”5 Bedford argues that under that interpretation section 12-6-118(3)(k) is void for vagueness.6

It is axiomatic that legislative enactments are to be presumed constitutional by the courts, and that a party attacking a statute on constitutional grounds bears the heavy burden of proving the statute unconstitutional beyond a reasonable doubt. Colorado Auto & Truck Wreckers Association v. Department of Revenue, 618 P.2d 646 (Colo.1980). The initial inquiry in a vagueness challenge “is whether the law in question either forbids or requires the doing of an act in terms so vague that men of ordinary intelligence must necessarily guess as to its meaning and differ as to its application....” People v. Alexander, 663 P.2d 1024, 1028 (Colo.1983) (quoting Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926)). In Weissman v. Board of Education, 190 Colo. 414, 547 P.2d 1267 (1976), we explained the scope of the vagueness doctrine:

[Tjotal precision of expression is elusive and has never been demanded of the legislature....
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The root of the vagueness doctrine is a rough idea of fairness. It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing ... statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.

Id. at 422-23, 547 P.2d at 1274 (quoting Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584 (1972)); [492]*492accord R & F Enterprises, Inc. v. Board of County Commissioners, 199 Colo. 137, 606 P.2d 64 (1980). When a statute is challenged on grounds of vagueness, courts must attempt to construe the legislation in such manner as to satisfy constitutional due process requirements. See, e.g., People v. Moore, 674 P.2d 354 (Colo.1984); People v. Rostad, 669 P.2d 126 (Colo.1983).

Bedford concedes that the statute requires proof of intentional publication or circulation. Its argument is, in essence, that if the district court is correct in concluding that the advertisement which is the subject of the publication may be materially misleading or inaccurate as the result of conduct which is either intentional or negligent, the statute contains no ascertainable standards and is, therefore, void for vagueness. We do not agree with the district court’s construction of the statute.

The Act is designed to prevent certain conduct of dealers which is harmful to consumers; section 12-6-118(3)(k) specifically prohibits distribution of materials which are inaccurate or misleading. In furtherance of the general purpose of the Act, the General Assembly has chosen to punish intentional conduct in subsection 118(3)(k). Logically, it would appear that any intentional publication or circulation of advertising materials necessarily requires some nexus between the person who causes the publication or circulation and the material that is the' subject thereof. In the absence of some knowledge or awareness of the misleading or inaccurate nature of the matter published, it is difficult to conceive of an “intentional” publication thereof.

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714 P.2d 489, 1986 Colo. LEXIS 513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bedford-motors-inc-v-harris-colo-1986.