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Gunderson v. Commissioner, N.H. Dep't of Safety

Supreme Court of New Hampshire

December 19, 2014

Robert Gunderson
v.
Commissioner, New Hampshire Department of Safety

Argued October 15, 2014.

Merrimack.

Seufert, Davis & Hunt, PLLC, of Franklin ( Brad C. Davis on the brief and orally), for the petitioner.

[167 N.H. 216] Joseph A. Foster, attorney general ( John J. Conforti, assistant attorney general, on the memorandum of law and orally), for the State.

LYNN, J. DALIANIS, C.J., and HICKS, CONBOY, and BASSETT, JJ., concurred.

OPINION

Page 620

Lynn, J.

The petitioner, Robert Gunderson, appeals an order of the Superior Court ( McNamara, J.) finding that he is a " Retail Vehicle Dealer" as defined by RSA 259:89-a (2014), and that he must obtain a license in accordance with RSA 261:103-a (2014) to engage in his motor vehicle business. We affirm.

The following facts are undisputed. The petitioner is a New Hampshire resident who works as a self-described " export buyer's agent." As such, he purchases specific motor vehicles from retail dealers across the country and exports them to buyers in foreign countries. Prior to exporting the vehicles, the petitioner obtains title to the vehicles in New Hampshire and holds himself out as the owner. The petitioner is then paid to transfer ownership of the vehicles to the foreign purchasers. The petitioner neither owns a retail motor vehicle sales location nor operates a lot to display vehicles, but performs his services as an export buyer's agent from his Moultonborough residence. The vehicles are never listed online or in any publications or classified advertising.

In 2012, the petitioner purchased a 2012 Porsche Cayenne and a 2012 BMW X5 from out-of-state retail dealers for the purpose of selling them in China and Russia. When the petitioner applied for titles for the vehicles, however, the New Hampshire Bureau of Title and Anti-Theft denied the applications and the New Hampshire Department of Safety determined that he needed to obtain a state-issued motor vehicle dealer's license to export motor vehicles.

The petitioner then filed the instant declaratory judgment action in superior court, seeking a ruling that he is not required to obtain a motor vehicle dealer's license.[1] Based upon an agreed statement

Page 621

of facts submitted by the parties, the trial court ruled that the petitioner is " engaged in the motor vehicle business" and, therefore, is required to obtain a dealer's license in accordance with RSA 261:103-a. The court subsequently denied the petitioner's motion for reconsideration, and this appeal followed.

[167 N.H. 217] The petitioner asserts that: (1) he is not a retail vehicle dealer as defined in RSA 259:89-a because he purchased and exported the vehicles in exchange for a commission and never offered them for sale to the general public; (2) he does not offer vehicles for sale to the general public; and (3) if New Hampshire law requires a dealer's license for the purpose of exporting motor vehicles out of the country, it is preempted by federal law and violates both the Commerce Clause and the Equal Protection Clause of the United States Constitution. The State responds that the petitioner's regular course of conduct of selling vehicles to foreign buyers qualifies him as a retail vehicle dealer ...


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