A. A person, unless licensed to do so by the department, shall not carry on or conduct the active trade or business of:

(1) a dealer in motor vehicles of a type subject to registration pursuant to the Motor Vehicle Code, including:

(a) trailers, but not trailers sold as kits;

(b) recreational vehicles designed to be towed;

(c) motorcycles over fifty-five cubic centimeters; and

(d) off-highway motor vehicles pursuant to the Off-Highway Motor Vehicle Act [66-3-1001 to 66-3-1016 and 66-3-1017 to 66-3-1020 NMSA 1978];

(2) wholesaling of vehicles. Any person who sells or offers for sale vehicles of a type subject to registration in this state, to a vehicle dealer licensed pursuant to the Motor Vehicle Code or who is franchised by a manufacturer, distributor or vehicle dealer to sell or promote the sale of vehicles dealt in by such manufacturer, distributor or vehicle dealer shall be presumed to be conducting the business of wholesaling;

(3) distributing of vehicles. Any person who distributes or sells new or used motor vehicles to dealers and who is not a manufacturer shall be presumed to be conducting the business of distributing vehicles; or

(4) a title service company. Any person who for consideration prepares or submits applications for the registration of or title to vehicles shall be presumed to be engaging in the business of a title service company.

B. Application for a dealer, wholesaler, distributor or title service company license shall be made upon the form prescribed by the department and shall contain the name and address of the applicant and, when the applicant is a partnership, the name and address of each partner or, when the applicant is a corporation, the names of the principal officers of the corporation and the state in which incorporated and the place where the business is to be conducted and the nature of the business and such other information as may be required by the department. Every application shall be verified by the oath or affirmation of the applicant, if an individual, or, in the event an applicant is a partnership or corporation, by a partner or officer of the partnership or corporation. Every application shall be accompanied by the fee required by law.

C. To ensure that a dealer, wholesaler, distributor or title service company complies with this section, the secretary may apply to a district court of this state to have a person operating without a license as required by this section or operating without the bond required by Section 66-4-7 NMSA 1978 enjoined from engaging in business until that person complies with the requirements of licensing as provided by this section and the bonding requirements of Section 66-4-7 NMSA 1978.

History: 1953 Comp., § 64-4-1, enacted by Laws 1978, ch. 35, § 214; 1981, ch. 361, § 18; 1989, ch. 318, § 12; 1998, ch. 48, § 12; 1999, ch. 122, § 2; 2003, ch. 410, § 1; 2005, ch. 324, § 12; 2005, ch. 325, § 23.

Cross references. — For the definition of "dealer", see 66-1-4.4 NMSA 1978.

For penalty for violation, see 66-4-9 NMSA 1978.

For the fee for a license, see 66-6-18 NMSA 1978.

Compiler's notes. — Court decisions and attorney general's opinions decided pursuant to former, similar provisions have been placed under this section.

2005 Multiple Amendments. — Laws 2005, ch. 324, § 12 and Laws 2005, ch. 325, § 23 enacted different amendments to this section that can be reconciled. Pursuant to 12-1-8 NMSA 1978, Laws 2005, ch. 325, § 23, as the last act signed by the governor, is set out above and incorporates both amendments. The amendments enacted by Laws 2005, ch. 324, § 12 and Laws 2005, ch. 325, § 23 are described below. To view the session laws in their entirety, see the 2005 session laws on NMOneSource.com.

Laws 2005, ch. 325, § 23, effective January 1, 2006, added Subsection A(1)(d) to provide that a person shall not act as a dealer of off-highway motor vehicles without a license.

Laws 2005, ch. 324, § 12, effective January 1, 2006, deleted former Subsection A(2), which provided that a person shall not conduct the business of dismantling of a vehicle for resale of the parts without a license and that a person possessing three or more wrecked or dismantled vehicles and who sells used parts is presumed to be conducting the business of wrecking or dismantling vehicles; deleted "wrecker of vehicles license" in Subsection B; deleted former Subsection C, which provided that a metal processor or dealer in scrap who dismantles, shreds, crushes of destroys more that three vehicles within a year shall be licensed; deleted "wrecker of vehicles" in Subsection C; deleted former Subsection E, which provided for the issuance of injunctions against persons doing business without a license; and deleted Subsection F, which provided that a temporary restraining order shall not be issued against a person who has complied with this section.

The 2003 amendment, effective June 20, 2003, substituted "A" for "No" at the beginning of Subsections A and F; inserted "not" following "the department, shall" in Subsection A; added "including" at the end of Paragraph A(1); added Subparagraphs A(1)(a) to (c); deleted "wrecking or" at the beginning of Paragraph A(2); deleted "provided, however, that if any such person also sells a vehicle at retail, he shall be deemed to be a dealer and is subject to the dealer-licensing provisions of the Motor Vehicle Code" at the end of Paragraph A(3); substituted "A" for "Any" at the beginning of Subsection C; deleted "In order" at the beginning of Subsection D; deleted "forthwith" following "the court may" in Subsection E; and deleted "not" following "restraining order shall" in Subsection F.

The 1999 amendment, effective July 1, 1999, in the section heading, inserted "and title service companies"; in Subsection A(2), in the second sentence deleted "motor" preceding vehicle parts, and deleted "or motor vehicle" following "vehicle" throughout; inserted Subsection A(5); in Subsection B, in the first sentence, substituted "dealer, wholesaler, distributor or wrecker of vehicles license or a title service company" for "dealer's, wholesaler's, distributor's or wrecker's"; in Subsection C, deleted "or motor vehicles" following "vehicles"; in Subsection D, inserted "of vehicles or title service company", inserted "or operating without the bond required by Section 66-4-7 NMSA 1978", and inserted "and the bonding requirements of Section 66-4-7 NMSA 1978" at the end; in Subsection E, in the first sentence, substituted "unlicensed person" for "unlicensed operator"; and made stylistic and gender neutral changes throughout the section.

The 1998 amendment, effective July 1, 1998, in Subsection A, substituted "department" for "division" and inserted "active trade or"; in Paragraph A(1), deleted "vehicles or" preceding "motor' and deleted "trailers, semitrailers, house trailers or pole trailers" following "vehicles", inserted "pursuant to the Motor Vehicle Code"; substituted "pursuant to" for "under" in Paragraph A(3); in Subsection B, substituted "department" for "division" twice and deleted "or places" following "place"; substituted "pursuant to" for "under" in Subsection C; and substituted "secretary" for "director" in Subsection D.

The 1989 amendment, effective July 1, 1989, in Subsection A(2) deleted ", firm or corporation" following "person" near the beginning of the second sentence, and substituted "and who regularly sells or offers for sale used vehicles or used motor vehicle parts" for "or parts" near the middle of that sentence; added Subsections D through F; and made minor stylistic changes throughout the section.

Illegality of unlicensed dealer's contract must be affirmatively pled. — Paragraph C of Rule 1-008 NMRA requires affirmative pleading of the defense of illegality of a contract made by an unlicensed dealer. L. & B. Equip. Co. v. McDonald, 1954-NMSC-100, 58 N.M. 709, 275 P.2d 639.

Fact that alleged principal was licensed automobile dealer under Section 64-8-1, 1953 Comp. (similar to this section) and had, likewise, procured the bond required by Section 64-8-6, 1953 Comp. (similar to Section 66-4-7 NMSA 1978) was considered favorably in determination that agency relationship existed. State v. DeBaca, 1971-NMCA-092, 82 N.M. 727, 487 P.2d 155.

All qualifying firms issued licenses even with same trade name. — Whether or not there may be problems concerning the reservation of trade names did not affect the operations of the department (now division) and the department could not refuse to issue licenses for the reason that there are a number of firms using the same name, the department should issue a license to a firm if it meets the statutory requirement. 1967 Op. Att'y Gen. No. 67-13.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 7A Am. Jur. 2d Automobiles and Highway Traffic §§ 150 to 152.

Licensing and registration of vehicle dealers, 57 A.L.R.2d 1265, 7 A.L.R.3d 1173.

53 C.J.S. Licenses § 34; 60 C.J.S. Motor Vehicles §§ 40, 41.