Opinion No.

The Honorable Jerry Bookout State Senator P.O. Box 415 Jonesboro, AR 72401

Dear Senator Bookout:

This is in response to your request for an opinion Arkansas Code of 1987 Annotated 23-112-301. Your question in this regard is, specifically, whether a licensed new car dealer may sell to the public a make or model of new motor vehicles different from those for which he holds his license and his franchise agreement; and if so, under what restrictions.

Section 23-112-301(b) states as follows:

(1) No person may engage in the business of buying, selling, or exchanging new motor vehicles unless he holds a valid license issued by the commission for the makes of new motor vehicles being bought, sold, or exchanged, or unless he is a bona fide employee or agent of the licensee.

(2) For purposes of this subsection, the term "engage in the business of buying, selling, or exchanging new motor vehicles" means:

(A) Displaying for sale new motor vehicles on a lot or showroom;

(B) Advertising for sale new motor vehicles; or

(C) Regularly or actively soliciting buyers for new vehicles.

A review of A.C.A. 23-112-301(b) supports the conclusion that such a sale is not prohibited so long as it does not reflect any of the three prohibited activities outlined under subsection (b)(2). In that instance, the person is not "engage(d) in the business of buying, selling, or exchanging new motor vehicles" for the purposes of the prohibition contained in 23-112-301(b)(1). This conclusion is based upon an interpretation of the language of Section 23-112-301(b) since there is no judicial authority offering guidance in this area.

It must be noted, however, that this will involve a factual question to be resolved by the Arkansas Motor Vehicle Commission ("Commission") based upon the particular facts and circumstances in each instance. The Commission will determine, with respect to each sale, whether a violation of A.C.A. 23-112-301(b) has in fact occurred.

This is in response to your request for an opinion Assistant Attorney General Elisabeth A. Walker.