§ 44-20-423 — Unlawful acts

Colorado § 44-20-423

• Jurisdiction: Colorado
• Title 44: Revenue -
• Art.: Sale of Self-propelled Vehicles

Text

(1) It is unlawful and a violation of this part 4 for
any powersports vehicle manufacturer, distributor, or manufacturer representative:

(a) To willfully fail to perform or cause to be performed any written
warranties made with respect to a powersports vehicle or parts thereof;

(b) To coerce or attempt to coerce any powersports vehicle dealer to
perform or allow to be performed an act that could be financially detrimental to the
dealer or that would impair the dealer's goodwill or to enter into an agreement with
a powersports vehicle manufacturer or distributor that would be financially
detrimental to the dealer or impair the dealer's goodwill, by threatening to cancel
or not renew a franchise between a powersports vehicle manufacturer or distributor
and the dealer;

(c) To coerce or attempt to coerce any powersports vehicle dealer to accept
delivery of a powersports vehicle, parts or accessories thereof, or any commodities
or services that have not been ordered by the dealer;

(d) (I) To cancel or cause to be canceled, directly or indirectly, without just
cause, the franchise of a powersports vehicle dealer, and the nonrenewal of a
franchise or selling agreement without just cause is a violation of this subsection
(1)(d) and shall constitute an unfair cancellation.

(II) As used in this subsection (1)(d), just cause shall be determined in the
context of all circumstances surrounding the cancellation or nonrenewal, including
but not limited to:

(A) The amount of business transacted by the powersports vehicle dealer;

(B) The investments necessarily made and obligations incurred by the
powersports vehicle dealer, including but not limited to goodwill, in the
performance of its duties under the franchise agreement, together with the
duration and permanency of the investments and obligations;

(C) The potential for harm to consumers as a result of disruption of the
business of the powersports vehicle dealer;

(D) The powersports vehicle dealer's failure to provide adequate service of
facilities, equipment, parts, and qualified service personnel;

(E) The powersports vehicle dealer's failure to perform warranty work on
behalf of the powersports vehicle manufacturer, subject to reimbursement by the
powersports vehicle manufacturer; and

(F) The powersports vehicle dealer's failure to substantially comply, in good
faith, with requirements of the franchise that are determined to be reasonable and
material.

(III) The following conduct by a powersports vehicle dealer shall constitute
just cause for termination without consideration of other factors:

(A) Conviction of, or a plea of guilty or nolo contendere to, a felony;

(B) A continuing pattern of fraudulent conduct against the powersports
vehicle manufacturer or consumers; or

(C) Continuing failure to operate for ten days or longer.

(e) To withhold, reduce, or delay unreasonably or without just cause delivery
of powersports vehicles, powersports vehicle parts and accessories, commodities,
or money due powersports vehicle dealers for warranty work done by any
powersports vehicle dealer;

(f) To withhold, reduce, or delay unreasonably or without just cause services
contracted for by powersports vehicle dealers;

(g) To coerce any powersports vehicle dealer to provide installment
financing with a specified financial institution;

(h) To violate any duty imposed by, or fail to comply with, any provision of
section 44-20-424, 44-20-425, or 44-20-426;

(i) (I) To fail to provide to the powersports vehicle dealer, within twenty days
after receipt of a notice of intent from a powersports vehicle dealer, the list of
documents and information necessary to approve the sale or transfer of the
ownership of a dealership by sale of the business or by stock transfer or the change
in executive management of the dealership;

(II) To fail to confirm within twenty days after receipt of all documents and
information listed in subsection (1)(i)(I) of this section that the documentation and
information has been received;

(III) To refuse to approve, unreasonably, the sale or transfer of the ownership
of a dealership by sale of the business or by stock transfer within sixty days after
the manufacturer has received all documents and information necessary to approve
the sale or transfer of ownership, or to refuse to approve, unreasonably, the change
in executive management of the dealership within sixty days after the
manufacturer has received all information necessary to approve the change in
management; except that nothing in this part 4 shall authorize the sale, transfer, or
assignment of a franchise or a change of the principal operator without the
approval of the powersports vehicle manufacturer or distributor unless the
manufacturer or distributor fails to send notice of the disapproval within sixty days
after receiving all documents and information necessary to approve the sale or
transfer of ownership; or

(IV) To condition the sale, transfer, relocation, or renewal of a franchise
agreement or to condition sales, services, parts, or finance incentives upon site
control or an agreement to renovate or make improvements to a facility; except
that voluntary acceptance of the conditions by the dealer shall not constitute a
violation;

(j) (I) To fail or refuse to offer to its same line-make franchised dealers all
models manufactured for that line-make except as a result of a strike or labor
difficulty, lack of manufacturing capacity, shortage of materials, freight embargo,
or other cause over which the powersports vehicle manufacturer has no control; or

(II) To require a dealer to pay an unreasonable fee, purchase unreasonable
advertising displays or other materials, or comply with unreasonable training or
facilities requirements as a prerequisite to receiving any particular model of that
same line-make, which shall be judged based on the circumstances of the individual
dealer and the conditions of the market served by the dealer;

(k) To require, coerce, or attempt to coerce any powersports vehicle dealer
to refrain from participation in the management of, investment in, or acquisition of
another line-make of new powersports vehicles or related products; except that
this subsection (1)(k) shall not apply unless the powersports vehicle dealer:

(I) Maintains a reasonable line of credit for each make or line of new
powersports vehicle;

(II) Remains in compliance with reasonable capital standards and reasonable
facilities requirements specified by the powersports vehicle manufacturer; but
reasonable facilities requirements shall not include a requirement that a
powersports vehicle dealer establish or maintain exclusive facilities, personnel, or
display space; and

(III) Provides written notice to the manufacturer, distributor, or
manufacturer's representative, no less than ninety days prior to the dealer's intent
to participate in the management of, investment in, or acquisition of another line-make of new powersports vehicles or related products;

(l) To fail to pay to a powersports vehicle dealer, within ninety days after the
termination, cancellation, or nonrenewal of a franchise, all of the following:

(I) The dealer cost, plus any charges made by the powersports vehicle
manufacturer for distribution, delivery, and taxes, less all allowances paid or
credited to the powersports vehicle dealer by the powersports vehicle
manufacturer, of unused, undamaged, and unsold powersports vehicles in the
powersports vehicle dealer's inventory that were acquired from the powersports
vehicle manufacturer or from another powersports vehicle dealer of the same line-make in the ordinary course of business within the previous twelve months;

(II) The dealer cost, less all allowances paid or credited to the powersports
vehicle dealer by the powersports vehicle manufacturer, for all unused,
undamaged, and unsold supplies, parts, and accessories in original packaging and
listed in the powersports vehicle manufacturer's current parts catalog;

(III) The fair market value of each undamaged sign owned by the
powersports vehicle dealer and bearing a common name, trade name, or trademark
of the powersports vehicle manufacturer if acquisition of the sign was required by
the powersports vehicle manufacturer;

(IV) The fair market value of all special tools and equipment that were
acquired from the powersports vehicle manufacturer or from sources approved and
required by the powersports vehicle manufacturer and that are in good and usable
condition, excluding normal wear and tear; and

(V) The cost of transporting, handling, packing, and loading the powersports
vehicles, supplies, parts, accessories, signs, special tools, equipment, and
furnishings described in this subsection (1)(l);

(m) To require, coerce, or attempt to coerce a powersports vehicle dealer to
close or change the location of the powersports vehicle dealer, or to make any
substantial alterations to the dealer premises or facilities when doing so would be
unreasonable or without written assurance of a sufficient supply of powersports
vehicles so as to justify the changes, in light of the current market and economic
conditions;

(n) To authorize or permit a person to perform warranty service repairs on
powersports vehicles unless the person is:

(I) A powersports vehicle dealer with whom the powersports vehicle
manufacturer has entered into a franchise agreement for the sale and service of the
manufacturer's powersports vehicles; or

(II) A person or government entity that has purchased new powersports
vehicles pursuant to a powersports vehicle manufacturer's fleet discount program
and is performing the warranty service repairs only on vehicles owned by the
person or entity;

(o) To require, coerce, or attempt to coerce a powersports vehicle dealer to
prospectively agree to a release, assignment, novation, waiver, or estoppel that
would relieve any person of a duty or liability imposed under this article 20 except
in settlement of a bona fide dispute;

(p) To discriminate between or refuse to offer to its same line-make
franchised dealers all models manufactured for that line-make based upon
unreasonable sales and service standards;

(q) To fail to make practically available an incentive, rebate, bonus, or other
similar benefit to a powersports vehicle dealer that is offered to another
powersports vehicle dealer of the same line-make within this state;

(r) To fail to pay to a powersports vehicle dealer:

(I) Within ninety days after the termination, cancellation, or nonrenewal of a
franchise for the failure of a dealer to meet performance sales and service
obligations or after the termination, elimination, or cessation of a line-make, the
cost of the lease for the facilities used for the franchise or line-make for the
unexpired term of the lease, not to exceed one year; except that:

(A) If the powersports vehicle dealer owns the facilities, the value of renting
the facilities for one year, prorated for each line-make based upon total sales
volume for the previous twelve months before the involuntary termination;

(B) Nothing in this subsection (1)(r)(I) shall be construed to limit the
application of subsection (1)(d) of this section;

(II) Within ninety days after the termination, elimination, or cessation of a
line-make or the termination of a franchise due to the insolvency of the
manufacturer or distributor, the fair market value of the powersports vehicle
dealer's goodwill for the line-make as of the date the manufacturer or distributor
announces the action that results in the termination, elimination, or cessation, not
including any amounts paid under subsections (1)(l)(I) to (1)(l)(V) of this section;

(s) To condition a franchise agreement on improvements to a facility unless
reasonably required by the technology of a powersports vehicle being sold at the
facility;

(t) To charge back, deny powersports vehicle allocation, withhold payments,
or take other actions against a powersports vehicle dealer if a powersports vehicle
sold by the powersports vehicle dealer is exported from Colorado unless the
manufacturer, distributor, or manufacturer representative proves that the
powersports vehicle dealer knew or reasonably should have known a powersports
vehicle was intended to be exported, which shall operate as a rebuttable
presumption that the powersports vehicle dealer did not have this knowledge;

(u) Within ninety days after the termination, elimination, or cessation of a
line-make or the termination, cancellation, or nonrenewal of a franchise by the
manufacturer, distributor, or manufacturer representative, for any reason other
than that the powersports vehicle dealer commits fraud, makes a
misrepresentation, or commits any other crime within the scope of the franchise
agreement or in the operation of the dealership, to fail to reimburse a powersports
vehicle dealer for the cost depreciated by five percent per year of any upgrades or
alterations to the powersports vehicle dealer's facilities required by the
manufacturer, distributor, or manufacturer representative within the previous five
years;

(v) To fail to notify a powersports vehicle dealer at least ninety days before
the following and to provide the specific reasons for the following:

(I) Directly or indirectly terminating, canceling, or not renewing a franchise
agreement; or

(II) Modifying, replacing, or attempting to modify or replace the franchise or
selling agreement of a powersports dealer, including a change in the dealer's
geographic area upon which sales or service performance is measured, if the
modification would substantially and adversely alter the rights or obligations of the
dealer under the current franchise or selling agreement or would substantially
impair the sales or service obligations or the dealer's investment;

(w) To require, coerce, or attempt to coerce a powersports dealer to
substantially alter a facility or premises if the facility or premises has been altered
within the last ten years at a cost of more than twenty-five thousand dollars, and
the alteration was required and approved by the manufacturer, distributor, or
manufacturer representative; except that this subsection (1)(w) does not apply to
improvements made to comply with health or safety laws or to accommodate the
technology requirements necessary to sell or service a line-make;

(x) (I) To sell or offer to sell new powersports vehicles to a franchised
powersports vehicle dealer with whom the manufacturer has a franchise agreement
at a lower actual price than the actual price offered to any other powersports
vehicle dealer with whom the manufacturer has a franchise agreement for the same
powersports vehicle similarly equipped; except that this subsection (1)(x) does not
apply to:

(A) Resale to any government;

(B) Donation or use by the dealer in a driver education course; or

(C) A price change made in the ordinary course of business if made available
to all powersports vehicle dealers when the price changes.

(II) This subsection (1)(x) does not prohibit a manufacturer, distributor, or
manufacturer representative from offering incentive programs, sales-promotion
plans, or other discounts if the incentives or discounts are reasonably available to
all powersports vehicle dealers with whom the manufacturer has a franchise
agreement.

(y) To require a powersports vehicle dealer to grant a manufacturer,
distributor, or manufacturer representative the following or to enforce the
following if the exercise of the contractual right would stop the transfer of the
powersports vehicle dealer ownership from an owner to an immediate family
member of the owner:

(I) A right of first refusal to purchase the powersports vehicle dealer; or

(II) An option to purchase the powersports vehicle dealer; and

(z) (I) To use an unreasonable, arbitrary, or unfair performance standard in
determining a powersports vehicle dealer's compliance with a franchise agreement;
or

(II) To fail to communicate, upon the request of the dealer, any performance
standard in a clear and concise writing to a powersports vehicle dealer before
applying the standard to the powersports vehicle dealer.

(2) It is unlawful for a person to act as a wholesaler, powersports vehicle
dealer, used powersports vehicle dealer, powersports vehicle manufacturer,
powersports vehicle distributor, powersports vehicle manufacturer representative,
or powersports vehicle salesperson unless the person has been duly licensed under
this part 4; except that this subsection (2) does not apply to a business owner
selling a powersports vehicle if the vehicle has been owned for more than one year,
the vehicle has been used exclusively for business purposes, the vehicle is titled in
the name of the business, all taxes for the vehicle have been paid, and the total
number of vehicles sold by the business owner over a two-year period does not
exceed twenty vehicles.

Legislative History

Source: L. 2018: (2) amended, (HB 18-1105), ch. 28, p. 328, � 2, effective August 8; entire article added with relocations, (SB 18-030), ch. 7, p. 120, � 2, effective October 1; (1)(a) and IP(1)(x)(I) amended, (HB 18-1354), ch. 349, p. 2073, � 2, effective October 1.