No. 00CA1936Colorado Court of Appeals.
December 20, 2001
Colorado Motor Vehicle Dealer Board No. 521-92-2853.
ORDER AFFIRMED IN PART, REVERSED IN PART
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Ken Salazar, Attorney General, Robert L. Pastore, Assistant Attorney General, Denver, Colorado, for Petitioner-Appellee.
Messner Reeves, LLC, Russell E. Carparelli, Denver, Colorado, for Respondent-Appellant.
Division V
Kapelke and Casebolt, JJ., concur
Opinion by JUDGE VOGT
[1] Respondent, Steven Anthony Brinker, appeals from an order of the Colorado Motor Vehicle Dealer Board (Board) suspending his motor vehicle salesperson license for one year and fining him $30,000. We affirm in part and reverse in part. [2] In June 1999, the Auto Industry Division of the Colorado Department of Revenue (Division) began investigating complaints that respondent had defrauded the recreational vehicle dealership where he worked by, among other things, pocketing extra sums collected on sales of vehicles and warranties. As a result of the investigation, respondent was charged with one count of violating § 12-6-118(5)(f), C.R.S. 2001 (engaging in fraudulent business practice), and two counts of violating §12-6-118(5)(q), C.R.S. 2001 (willfully violating a law respecting commerce or motor vehicles). [3] After a hearing, the Board found that the violations had been established, fined respondent $10,000 for each of the three violations, and ordered his motor vehicle salesperson license suspended for one year for each violation, the terms of suspension to run concurrently. I.
[4] Respondent contends that the suspension of his license was unlawful because the Board failed to give him notice of the facts or conduct underlying the charges, as required by § 24-4-104(3), C.R.S. 2001. We disagree.
No revocation, suspension, annulment, limitation, or modification of a license by any agency shall be lawful unless, before institution of agency proceedings therefor, the agency has given the licensee notice in writing of facts or conduct that may warrant such action and afforded the licensee opportunity to submit written data, views, and arguments with respect to such facts or conduct
. . . .
[6] Respondent does not dispute that the “Notice of Hearing, Notice of Charges” sent to him in April 2000 adequately notified him of the facts or conduct that might warrant suspension. Nor does he argue that he was not given the opportunity to submit written data and arguments with respect to such facts. However, he contends that § 24-4-104(3) requires written notice before institution of agency proceedings and that, because the notice of hearing itself instituted the agency proceedings, giving notice for the first time in that document does not comply with the statute.
(1977), that neither § 24-4-104 (3) nor due process considerations require that the licensee receive two notices; rather, the notice of hearing serves the dual purpose of informing the licensee of the hearing date and giving him or her written notice of the facts or conduct warranting the agency’s actions. See also Colorado Motor Vehicle DealerBoard v. Butterfield, 9 P.3d 1148 (Colo.App. 2000) (citing Dixon for proposition that § 24-4-104(3) does not require written notice prior to the notice of hearing). [8] Under Dixon, respondent’s contention fails. Further, even if we were to agree with respondent that, contrary to Dixon, the plain language of the statute requires written notice before the notice of hearing is sent, respondent would not be entitled to relief. [9] The June 1999 complaint, made to the Division orally and then in writing, detailed the transactions alleged by the complainants to constitute improper conduct. Respondent met with a Division investigator and a detective on two occasions in September 1999, was advised of the accusations, and gave his explanation in response to those accusations. [10] In January 2000, respondent received a letter from the Division that referenced the complaint, stated that the Division’s investigation into “this complaint” indicated that
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respondent might have violated two specified statutes, and gave respondent the opportunity to submit written data, views, and arguments within ten days.
[11] Although the January 2000 letter did not itself describe the facts or conduct that might warrant suspension, it referred to the complaint, of which respondent had already been made aware, which did detail such facts. Further, respondent has not claimed, before the Board or on appeal, that he was unaware before the hearing of the facts or conduct on which the charges were based or that he was deprived in any way of an opportunity to respond. [12] In these circumstances, there was substantial compliance with §24-4-104(3), even if the statute is read as respondent urges. SeeColorado Motor Vehicle Dealer Board v. Butterfield, supra (no violation of § 24-4-104 (3) where respondent discussed incident with investigators five months before formal charges were filed, declined to make written statement, did not claim to be unaware of allegations on which formal charges were based, and received notice of hearing containing detailed statement of facts and conduct related to the violations). Thus, respondent is not entitled to relief based on the Board’s asserted noncompliance with the statutory notice requirement.II.
[13] Respondent next contends that the Board erred in construing §12-6-118(5)(q) to encompass allegations of theft and conspiracy that were based on conduct involving commerce and motor vehicles. We agree.
(Colo. 1998); Barnes v. Colorado Department of Revenue, 23 P.3d 1235
(Colo App. 2000). [15] While an agency’s statutory interpretation is entitled to deference, a court is not bound by an agency interpretation that is inconsistent with the clear language of the statute or with legislative intent. Barnes v. Colorado Department of Revenue, supra.
A.
[16] Section 12-6-118(5), C.R.S. 2001, provides that the license of a motor vehicle salesperson may be denied, revoked, or suspended on any of various enumerated grounds, including:
[17] Respondent was charged with two counts of violating this statute. The first count set forth the statutory language quoted above, followed by the phrase “to wit: § 18-4-401, C.R.S. [2001] theft,” followed by the definition of theft in § 18-4-401(1)(a), C.R.S. 2001. In support of this charge, it was alleged that respondent had knowingly misappropriated monies belonging to the dealership for which he worked, with the intent to deprive the dealership permanently of those monies. [18] The second count likewise recited the language of § 12-6-118(5)(q) quoted above, followed by the phrase “to wit: § 18-2-201, C.R.S. [2001] conspiracy,” followed by the statutory definition of conspiracy. It was alleged in support of this charge that respondent had conspired with another individual to commit the crime of theft as described in the previous count. [19] Respondent argued before the Board that the plain language of §12-6-118(5)(q), which refers to willful violations of laws or regulations “respecting commerce or motor vehicles,” contemplates wrongdoing such as odometer tampering or title skipping and does not encompass violations of criminal laws by conduct that merely involves or relates to commerce or motor vehicles. The Board disagreed and found that respondent had violated § 12-6-118(5)(q) as charged.(q) Willfully violating any state or federal law respecting commerce or motor vehicles or any lawful rule or regulation respecting commerce or motor vehicles promulgated by any licensing or regulating authority pertaining to motor vehicles.
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B.
[20] We agree with respondent that the Board’s interpretation of §12-6-118(5)(q) is inconsistent with the clear language of the statute.