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Colorado Motor Vehicle Dealer Board v. Freeman

Court of Appeals of Colorado, Third Division

November 6, 2014

Colorado Motor Vehicle Dealer Board, Plaintiff-Appellee,
v.
Jeffrey Freeman, Defendant-Appellant.

Colorado Motor Vehicle Dealer Board Case No. MSD-12-189.

John W. Suthers, Attorney General, Y.E. Scott, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Jeffrey Freeman, Pro Se

OPINION

Hawthorne Judge

¶ 1 Respondent, Jeffrey Freeman, appeals the final order of petitioner, Colorado Motor Vehicle Dealer Board (the Board), denying his application for a motor vehicle salesperson's license. We vacate and remand with directions.

I. Facts and Procedural History

¶ 2 In February 2007, Freeman was convicted of third degree assault of an at-risk adult, a class 6 felony, under ch. 200, sec. 4, § 18-3-204, 2004 Colo. Sess. Laws 635, and ch. 240, sec. 14, § 18-6.5-103(3), 1995 Colo. Sess. Laws 1254.[1]

¶ 3 Five years later, Freeman applied for a motor vehicle salesperson's license. His application was denied on five separate grounds by the Auto Industry Division of the Board (Division). As pertinent here, the Division found that Freeman's conviction for third degree assault of an at-risk adult constituted a mandatory disqualifying offense under section 12-6-118(7)(a)(I), C.R.S. 2014. That statute provides, among other things, that a license shall be denied if an applicant has been convicted of a felony in violation of article 3, title 18 during the previous ten years.

¶ 4 Freeman appealed the Division's decision to the Board and requested a hearing. Following a hearing, the hearing officer issued an initial decision for the Board upholding the Division's denial of the salesperson's license solely on the basis that Freeman's conviction was a mandatory disqualifying offense under section 12-6-118(7)(a)(I). The hearing officer determined that the substantive offense for which Freeman was convicted was section 18-3-204(3), not section 18-6.5-103(3)(c), and that, as a felony, it was a mandatory disqualifying offense under section 12-6-118(7)(a)(I).

¶ 5 Freeman sought review of the Board's initial decision. He argued that assault in the third degree of an at-risk adult was not a mandatory disqualifying offense under section 12-6-118(7)(a)(I) because it was not a felony conviction under article 3, title 18.

¶ 6 The Board issued a final order accepting the initial decision in its entirety.

II. Discussion

¶ 7 Freeman contends that the Board erred in upholding the initial decision denying his license application. He argues that his conviction is a felony conviction under section 18-6.5-103(3)(c), not section 18-3-204(1)(a), which specifies that a conviction for assault in the third degree is a class 1 misdemeanor. See ยง 18-3-204(3). Thus, he asserts that his ...


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