Florida Senate - 2012                                     SB 768
       
       
       
       By Senator Flores
       
       
       
       
       38-00392-12                                            2012768__
    1                        A bill to be entitled                      
    2         An act relating to commercial relationships; creating
    3         s. 686.80, F.S.; designating the act as the “Marine
    4         Product Manufacturers and Dealers Act”; creating s.
    5         686.801, F.S.; providing legislative findings and
    6         intent; providing for liberal construction of the act;
    7         creating s. 686.802, F.S.; providing definitions;
    8         creating s. 686.803, F.S.; providing for the
    9         application of the act to agreements between a dealer
   10         and a manufacturer, distributor, or wholesaler of
   11         marine products; creating s. 686.804, F.S.; providing
   12         requirements for warranty agreements and the
   13         processing of warranty claims relating to marine
   14         products; specifying the minimum compensation to a
   15         dealer for warranty work and for parts; limiting the
   16         time period for auditing warranty claims and sales
   17         incentives submitted by a dealer; creating s. 686.805,
   18         F.S.; requiring that a dealer in marine products
   19         provide predelivery and preparation obligations;
   20         requiring that a manufacturer of marine products
   21         provide for the availability of repair parts;
   22         requiring that a manufacturer or distributor accept
   23         returned parts from a dealer under certain
   24         circumstances; specifying the minimum credit to be
   25         provided to a dealer that returns a part; requiring
   26         that a manufacturer or distributor issue applicable
   27         credit within a specified time; requiring that the
   28         packing and return freight expenses of surplus parts
   29         be borne by the dealer; creating s. 686.806, F.S.;
   30         requiring that a manufacturer, distributor, or
   31         wholesaler repurchase a dealer’s inventory of marine
   32         products under certain circumstances; specifying the
   33         minimum price to be paid for repurchased marine
   34         products; requiring that the title and right of
   35         possession to the repurchased items be transferred to
   36         the manufacturer, distributor, or wholesaler within a
   37         reasonable time after payment of the repurchase
   38         amount; providing exceptions to the repurchase
   39         requirement; authorizing the imposition of treble
   40         damages for failing to repurchase the inventory of a
   41         dealer within a certain time period; requiring that a
   42         manufacturer, distributor, or wholesaler intending to
   43         establish a new dealership or to relocate a current
   44         dealership give written notice to an existing
   45         dealership in the relevant market area; requiring that
   46         a manufacturer, distributor, or wholesaler compensate
   47         a dealer of marine products for direct sales within
   48         the dealer’s market area; creating s. 686.807, F.S.;
   49         requiring that a manufacturer, distributor, or
   50         wholesaler indemnify a dealer of marine products for
   51         losses relating to legal actions; creating s. 686.808,
   52         F.S.; prohibiting unfair or deceptive acts relating to
   53         the sale of marine products; specifying acts and
   54         practices that constitute misconduct; creating s.
   55         686.809, F.S.; providing that any part of a contract
   56         or franchise agreement which violates the act is void;
   57         creating s. 686.81, F.S.; specifying the legal
   58         remedies available for violations of the act;
   59         authorizing a class action under certain
   60         circumstances; authorizing the award of punitive
   61         damages under certain circumstances; authorizing the
   62         Department of Legal Affairs or a state attorney to
   63         enforce the act under certain circumstances; creating
   64         s. 686.811, F.S.; providing that the act does not
   65         preempt local ordinances unless the ordinances are
   66         inconsistent with the act; providing for application
   67         of the act to contracts entered into, renewed, or
   68         amended after a specified date; providing an effective
   69         date.
   70  
   71  Be It Enacted by the Legislature of the State of Florida:
   72  
   73         Section 1. Section 686.80, Florida Statutes, is created to
   74  read:
   75         686.80Marine Product Manufacturers and Dealers Act.
   76  Sections 686.80-686.811 may be cited as the “Marine Product
   77  Manufacturers and Dealers Act.”
   78         Section 2. Section 686.801, Florida Statutes, is created to
   79  read:
   80         686.801Legislative findings and intent; construction.—
   81         (1)The Legislature finds and declares that the
   82  distribution and sale of marine products in this state affects
   83  vital interests of the state, including the general economy of
   84  the state, the public interest, and the public welfare. The
   85  Legislature further finds that it must regulate the conduct of
   86  manufacturers, distributors, and dealers of marine products, and
   87  their representatives who do business in this state, in order to
   88  prevent fraud, unfair business practices, unfair methods of
   89  competition, impositions, and other abuses upon the residents of
   90  this state.
   91         (2)In order to promote the intent described in this
   92  section, ss. 686.80-686.811 shall be liberally construed.
   93         Section 3. Section 686.802, Florida Statutes, is created to
   94  read:
   95         686.802Definitions.—As used in ss. 686.80-686.811, the
   96  term:
   97         (1)“Dealer” means a person who sells, solicits, or
   98  advertises the sale of marine products to the consuming public.
   99  The term does not include:
  100         (a)A public officer while performing her or his duties as
  101  an officer.
  102         (b)A person making a casual or isolated sale of her or his
  103  own marine products.
  104         (c)A person engaged in the auction sale of marine
  105  products.
  106         (d)A person engaged in the sale, solicitation, or
  107  advertisement of used marine products only.
  108         (e) A receiver, trustee, administrator, executor, or
  109  guardian or other persons appointed by, or acting under the
  110  judgment or order of, a court.
  111         (f) A bank, a finance company, or other loan agency that
  112  acquires marine products incident to its regular business.
  113         (2)“Dealership” means the business of selling or
  114  attempting to sell by a dealer of new marine products, or the
  115  right conferred by written or oral agreement with the
  116  manufacturer, distributor, or wholesaler, for a definite or
  117  indefinite period of time, to sell or attempt to sell new marine
  118  products.
  119         (3)“Distributor” or “wholesaler” means a person, firm,
  120  association, corporation, or company that sells or distributes
  121  new marine products to dealers.
  122         (4)“Franchise” means a contract or agreement that is
  123  expressed or implied, is oral or written, and lasts for a
  124  definite or indefinite time, during which a manufacturer,
  125  distributor, or wholesaler grants to a dealer permission to use
  126  a trade name, service mark, trademark, or related characteristic
  127  and during which there is a common interest or community of
  128  interest in the marketing of marine products or related services
  129  at wholesale or retail, whether by leasing or sale or otherwise.
  130         (5)“Franchisee” means a dealer to whom a franchise is
  131  offered or granted.
  132         (6)“Franchisor” means a manufacturer, distributor, or
  133  wholesaler that grants a franchise to a dealer.
  134         (7)“Fraud” means actual fraud or constructive fraud as
  135  normally defined, in addition to the following:
  136         (a)A misrepresentation in any manner, whether
  137  intentionally false or arising from gross negligence, of a
  138  material fact.
  139         (b)A promise or representation not made honestly and in
  140  good faith.
  141         (c)An intentional failure to disclose a material fact.
  142         (d)An artifice employed to deceive another.
  143         (8)“Manufacturer” means a person engaged in the business
  144  of manufacturing or assembling new and unused marine products.
  145         (9)“Marine product” means a new watercraft, boat, or motor
  146  designed for recreational or commercial use on water. The term
  147  includes an outboard motor or boat that has an attached motor.
  148  The term does not include a watercraft designed or adapted to be
  149  powered only by an occupant’s energy.
  150         (10)“Used marine product” means a marine product that was
  151  previously sold to and put into regular use or service by a
  152  person, except a distributor, wholesaler, or dealer for resale.
  153         (11)“Person” means a natural person, corporation,
  154  association, partnership, trust, or other business entity and,
  155  in the case of a business entity, includes any other entity in
  156  which the business entity has a majority interest or which it
  157  effectively controls, as well as the individual officers,
  158  directors, and other persons in active control of the activities
  159  of each such entity.
  160         (12)“Relevant market area” means the geographic area for
  161  which a dealer is assigned responsibility for selling or
  162  soliciting or advertising the sale of marine products under the
  163  terms of a franchise. The relevant market area of a dealer must
  164  include at least all of the area within 30 miles from a
  165  dealership location.
  166         (13)“Sale” means the issuance, transfer, agreement for
  167  transfer, exchange, pledge, hypothecation, or mortgage in any
  168  manner or form, by transfer in trust or otherwise, of any marine
  169  product or interest in marine products, or of any franchise
  170  related to marine products, for a consideration and any option,
  171  subscription or other contract, or solicitation, looking to a
  172  sale, or offer or attempt to sell in any form, whether in oral
  173  or written form for a consideration.
  174         (14)Terminate” or “termination, with respect to a
  175  franchise, includes the termination, discontinuation,
  176  cancellation, or nonrenewal of a franchise.
  177         Section 4. Section 686.803, Florida Statutes, is created to
  178  read:
  179         686.803Application of the Marine Product Manufacturers and
  180  Dealers Act.—
  181         (1) A person who engages directly or indirectly in
  182  purposeful agreements or contracts within this state in
  183  connection with the sale or advertising for sale of new marine
  184  products is subject to ss. 686.80-686.11.
  185         (2) Sections 686.80-686.11 apply to all written or oral
  186  agreements between a manufacturer, distributor, or wholesaler
  187  with a dealer, including, but not limited to, the franchise
  188  offering; the franchise agreement; sales of goods, services, and
  189  advertising; leases or mortgages of real or personal property;
  190  promises to pay; security interests; pledges; insurance
  191  contracts; advertising contracts; construction or installation
  192  contracts; servicing contracts; and all other such agreements in
  193  which the manufacturer, distributor, or wholesaler has any
  194  direct or indirect interest.
  195         Section 5. Section 686.804, Florida Statutes, is created to
  196  read:
  197         686.804Warranty agreements; claims; compensation of
  198  dealers.—
  199         (1)Each manufacturer, distributor, or wholesaler shall
  200  provide a fair and reasonable warranty agreement on any new
  201  marine products that it sells and shall fairly compensate its
  202  dealers for labor and parts used in fulfilling the warranty
  203  agreements.
  204         (2)(a)Each claim for payment by a dealer under a warranty
  205  agreement for labor or parts must be paid within 30 days
  206  following its approval. Each claim must be approved or
  207  disapproved within 30 days after its receipt. When a claim is
  208  disapproved, the dealer who submitted it must be notified in
  209  writing of the disapproval within the 30-day period, and the
  210  notice must state the specific grounds upon which the
  211  disapproval is based.
  212         (b)Any special handling of claims required of the dealer
  213  by the manufacturer, distributor, or wholesaler, which handling
  214  is not uniformly required of all dealers, may be enforced only
  215  after 30 days’ notice in writing to the dealer and upon good and
  216  sufficient reason.
  217         (3)(a)The minimum compensation to a dealer for warranty
  218  work shall be calculated for labor in accordance with the
  219  reasonable and customary amount of time required to complete
  220  such work, expressed in hours and tenths of hours multiplied by
  221  the dealer’s established hourly retail labor rate. Before filing
  222  a claim for reimbursement for warranty work, the dealer must
  223  notify the applicable manufacturer, distributor, or wholesaler
  224  of the dealer’s hourly retail labor rate.
  225         (b)The minimum compensation to the dealer for parts used
  226  in fulfilling warranty work shall be the dealer’s costs for the
  227  parts, including all freight and handling charges applicable to
  228  the parts, plus 25 percent of the sum of these costs and charges
  229  to reimburse the dealer’s reasonable cost of doing business and
  230  providing warranty service on behalf of the manufacturer.
  231         (4) A manufacturer, distributor, or wholesaler may not
  232  deny, delay payment for, or restrict a claim by a dealer for
  233  warranty service or parts, incentives, holdbacks, or other
  234  amounts owed to a dealer unless the denial, delay, or
  235  restriction is the direct result of a material defect in the
  236  claim which affects the validity of the claim.
  237         (5)A manufacturer, distributor, or wholesaler may audit a
  238  warranty claim submitted by a dealer for up to 12 months after
  239  payment of the claim. A manufacturer, distributor, or wholesaler
  240  may charge back to a dealer only those amounts based upon paid
  241  claims shown by the audit to be invalid. This subsection does
  242  not apply to a fraudulent claim.
  243         (6)An audit of a dealer by a manufacturer, distributor, or
  244  wholesaler for sales incentives, service incentives, rebates, or
  245  other forms of incentive compensation must be completed within
  246  12 months after the date of termination of the incentive
  247  compensation program. This subsection does not apply to a
  248  fraudulent claim.
  249         Section 6. Section 686.805, Florida Statutes, is created to
  250  read:
  251         686.805Parts; availability; return.—
  252         (1)Each manufacturer shall specify, and each dealer shall
  253  provide and fulfill, reasonable predelivery and preparation
  254  obligations for its marine products before the delivery of
  255  marine products to retail purchasers.
  256         (2)Each manufacturer shall provide for the availability of
  257  repair parts throughout the reasonable useful life of any marine
  258  product sold.
  259         (3)Each manufacturer or distributor shall annually provide
  260  to its dealers an opportunity to return a portion of their
  261  surplus parts inventories for credit. The surplus procedure
  262  shall be administered as follows:
  263         (a)The manufacturer or distributor may specify, and notify
  264  each of its dealers of, a time period of at least 60 days’
  265  duration during which each of its dealers may submit its surplus
  266  parts list and return the surplus parts to the manufacturer or
  267  distributor.
  268         (b)If a manufacturer or distributor has not notified a
  269  dealer of a specific time period for returning surplus parts
  270  within the preceding 12 months, the manufacturer or distributor
  271  must authorize and allow the dealer’s surplus parts return
  272  request within 30 days after receipt of such request from the
  273  dealer.
  274         (c)Each manufacturer or distributor must allow surplus
  275  parts return authority on a dollar value of parts equal to 6
  276  percent of the total dollar value of parts purchased from the
  277  manufacturer or distributor by the dealer during the 12-month
  278  period immediately preceding the notification to the dealer of
  279  the surplus parts return program, or the month in which the
  280  dealer’s return request is made, whichever is applicable.
  281  However, the dealer may elect to return a dollar value of her or
  282  his surplus parts equal to less than 6 percent of the total
  283  dollar value of parts purchased by the dealer from the
  284  manufacturer or distributor during the preceding 12-month
  285  period.
  286         (d)An obsolete or superseded part may not be returned, but
  287  any part listed in the manufacturer’s, distributor’s, or
  288  wholesaler’s current list of returnable parts on the date of
  289  notification of the surplus parts return program to the dealer,
  290  or on the date of the dealer’s parts return request, whichever
  291  is applicable, is eligible for return and for specified credit.
  292  However, a returned part must be in new and unused condition and
  293  must have been purchased from the manufacturer, distributor, or
  294  wholesaler to whom it is returned.
  295         (e)The minimum credit to be allowed for a returned part is
  296  85 percent of the wholesale cost of the part as listed in the
  297  manufacturer’s, distributor’s, or wholesaler’s current list of
  298  returnable parts on the date of the notification of the surplus
  299  parts return program to the dealer, or on the date of the
  300  dealer’s parts return request, whichever is applicable.
  301         (f)Applicable credit must be issued or furnished by the
  302  manufacturer or distributor to the dealer within 60 days after
  303  receipt of her or his returned parts.
  304         (g)The packing and return freight expense incurred in any
  305  return of surplus parts pursuant to the terms of this section
  306  shall be borne by the dealer.
  307         Section 7. Section 686.806, Florida Statutes, is created to
  308  read:
  309         686.806Repurchase of inventory upon termination of
  310  franchise agreement; establishment or relocation of dealership;
  311  sale or lease of new marine products.—
  312         (1)A manufacturer, distributor, or wholesaler that enters
  313  into a franchise agreement with a dealer which requires the
  314  dealer to maintain an inventory of marine products or repair
  315  parts must repurchase the inventory upon termination of the
  316  franchise as provided in this section. However, the dealer may
  317  choose to keep the inventory. If the dealer has an outstanding
  318  debt to the manufacturer, distributor, or wholesaler, the
  319  repurchase amount may be credited to the dealer’s account.
  320         (2)If the dealer decides not to keep the inventory, the
  321  manufacturer, distributor, or wholesaler must repurchase the
  322  inventory held by the dealer on the date of termination of the
  323  contract. The manufacturer, distributor, or wholesaler shall
  324  pay:
  325         (a)The actual dealer cost, including freight, of all new,
  326  unsold, undamaged, and complete marine products.
  327         (b)The current wholesale price of all new, unused, and
  328  undamaged parts and accessories that were purchased from the
  329  manufacturer, distributor, or wholesaler or purchased from an
  330  outgoing dealer as a part of the dealer’s initial inventory and
  331  that have been listed in the manufacturer’s, distributor’s, or
  332  wholesaler’s parts price book in the previous 2 years. The
  333  manufacturer, distributor, or wholesaler must also pay the
  334  dealer 6 percent of the current wholesale price on all new,
  335  unused, and undamaged repair parts returned to cover the cost of
  336  handling, packing, and loading. However, the manufacturer,
  337  distributor, or wholesaler may perform the handling, packing,
  338  and loading in lieu of paying the 6 percent sum imposed in this
  339  paragraph for these services. If the manufacturer, distributor,
  340  or wholesaler elects to perform the handling, packing, and
  341  loading, the dealer shall make the marine products available to
  342  the manufacturer, distributor, or wholesaler after receipt by
  343  the dealer of the full repurchase amount as provided in this
  344  section.
  345         (c)The fair market value of each undamaged sign owned by
  346  the dealer which bears a trademark or trade name used or claimed
  347  by the manufacturer, distributor, or wholesaler and which was
  348  purchased from or at the request of the manufacturer,
  349  distributor, or wholesaler.
  350         (d)The fair market value of all special tools, data
  351  processing equipment, and marine product service equipment owned
  352  by the dealer which:
  353         1.Were recommended in writing by the manufacturer,
  354  distributor, or wholesaler as special tools and equipment;
  355         2.Were purchased from or at the request of the
  356  manufacturer, distributor, or wholesaler; and
  357         3.Are in usable and good condition except for reasonable
  358  wear and tear.
  359         (3)Upon payment of the repurchase amount to the dealer,
  360  the title and right of possession to the repurchased items shall
  361  transfer or be transferred within a reasonable time to the
  362  manufacturer, distributor, or wholesaler.
  363         (4) This section does not require the repurchase from a
  364  dealer of:
  365         (a)A single repair part that is priced as a set of two or
  366  more items.
  367         (b)A repair part that, because of its condition, is not
  368  resalable as a new part without repackaging or reconditioning.
  369         (c) Inventory that the dealer desires to keep, if the
  370  dealer has a contractual right to keep it.
  371         (d) A marine product that is not in new, unused, undamaged,
  372  and complete condition.
  373         (e)A marine product that has been used by the dealer or
  374  has deteriorated because of weather conditions at the dealer’s
  375  location, unless the manufacturer, distributor, or wholesaler
  376  receives a reasonable allowance for such usage or deterioration.
  377         (f) A part that is not in new, unused, and undamaged
  378  condition.
  379         (5) If a manufacturer, distributor, or wholesaler fails or
  380  refuses to repurchase any inventory described in this section
  381  within 60 days after termination of a dealer’s franchise, he or
  382  she is civilly liable for three times the current wholesale
  383  price of the inventory plus any freight charges paid by the
  384  dealer, the dealer’s reasonable attorney fees, court costs, and
  385  interest on the current wholesale price computed at the legal
  386  interest rate provided under s. 687.01 beginning from the 61st
  387  day after termination.
  388         (6)A manufacturer, distributor, or wholesaler that intends
  389  to establish a new dealership or to relocate a current
  390  dealership for a particular product line or make of marine
  391  products within the relevant market area of an existing
  392  dealership of the same product line or make of marine products
  393  must give written notice of such intent by certified mail or
  394  overnight delivery, return receipt requested, to the existing
  395  dealership. The notice must be delivered at least 180 days
  396  before the establishment of the new dealership or relocation of
  397  a current dealership. The notice must include:
  398         (a)The specific location of the additional or relocated
  399  dealership.
  400         (b)The date on or after which the additional or relocated
  401  dealership will commence operation at the new location.
  402         (c)The identity of all existing dealerships in the
  403  relevant market area where the new or relocated dealership is to
  404  be located.
  405         (d)The names of the dealer and principals in the new or
  406  relocated dealership.
  407         (7)A manufacturer, distributor, or wholesaler may sell or
  408  lease new marine products for use within the state. If the
  409  manufacturer, distributor, or wholesaler makes a direct sale or
  410  lease of marine products, it must pay to the dealer located
  411  within the relevant market area a commission of at least 10
  412  percent of the sale or lease price of the marine products sold
  413  or leased. This payment covers any compensation to the dealer
  414  for the cost of customary preparation and delivery as well as
  415  any commission on the sale or lease. This compensation must be
  416  paid or credited in the same manner as provided in this section.
  417  The manufacturer, distributor, or wholesaler, if practicable,
  418  must use the dealer in the relevant market area for preparation
  419  and delivery. For purposes of this subsection, marine products
  420  are considered to be used primarily within a dealer’s relevant
  421  market area if the new marine product is located or housed at a
  422  user’s facility located within the relevant market area. This
  423  subsection does not apply to a liquidation or sale of marine
  424  products which has been ordered by a court.
  425         Section 8. Section 686.807, Florida Statutes, is created to
  426  read:
  427         686.807Indemnification of dealer with respect to legal
  428  actions.—A manufacturer, distributor, or wholesaler shall fully
  429  indemnify and hold harmless its dealers against any losses,
  430  including, but not limited to, court costs and reasonable
  431  attorney fees or damages arising out of a complaint, claim, or
  432  lawsuit involving, but not limited to, strict liability,
  433  negligence, misrepresentation, express or implied warranty, or
  434  rescission of a sale if the complaint, claim, or lawsuit relates
  435  to the manufacture, assembly, or design of new items, parts, or
  436  accessories governed by ss. 686.80-686.811 or other functions by
  437  the manufacturer, distributor, or wholesaler which are beyond
  438  the control of the dealer.
  439         Section 9. Section 686.808, Florida Statutes, is created to
  440  read:
  441         686.808Unlawful acts and practices.Unfair methods of
  442  competition and unfair or deceptive acts or practices in the
  443  conduct of the manufacturing, distribution, wholesaling,
  444  franchising, sale, and advertising of marine products are
  445  declared to be unlawful.
  446         (1) A manufacturer, distributor, wholesaler, or dealer may
  447  not engage in an action that is arbitrary, capricious, in bad
  448  faith, or unconscionable and that causes damage in terms of law
  449  or equity to any of the parties or to the public.
  450         (2) A manufacturer, distributor, or wholesaler may not:
  451         (a) Coerce or compel, or attempt to coerce or compel, a
  452  dealer to order or accept delivery of any marine products, parts
  453  or accessories for those items, or other commodity or
  454  commodities that the dealer has not voluntarily ordered.
  455         (b) Refuse to deliver to a dealer having a franchise for
  456  the retail sale of new marine products sold or distributed by
  457  the manufacturer, distributor, or wholesaler in reasonable
  458  quantities and within a reasonable time after receipt of the
  459  dealer’s order, any marine products covered by the franchise
  460  specifically advertised or represented by the manufacturer,
  461  distributor, or wholesaler to be available for immediate
  462  delivery, or fail to deliver marine products to a dealer in
  463  quantities that are fair and equitable when compared with other
  464  dealers to whom the manufacturer, distributor, or wholesaler
  465  delivers marine products pursuant to a franchise agreement.
  466  However, the failure to deliver marine products is not
  467  considered a violation of this section if the failure is due to
  468  a prudent and reasonable restriction on the extension of credit
  469  by the franchisor to the dealer, an act of God, a work stoppage
  470  or delay due to a strike or labor difficulty, a bona fide
  471  shortage of materials, a freight embargo, or another cause over
  472  which the manufacturer, distributor, or wholesaler has no
  473  control.
  474         (c) Coerce or compel, or attempt to coerce or compel, a
  475  dealer to enter into an agreement, written or oral, which is
  476  supplementary to an existing franchise with the manufacturer,
  477  distributor, or wholesaler, or commit any other act prejudicial
  478  to the dealer by threatening to terminate an existing franchise.
  479  However, notice in good faith to a dealer of the dealer’s
  480  violation or breach of any term or provision of the franchise
  481  does not constitute a violation of this section if the notice is
  482  in writing and is mailed by registered or certified mail to the
  483  dealer at the dealer’s current business address and the notice
  484  contains the specific facts as to the dealer’s violation or
  485  breach of the franchise.
  486         (d)1. Terminate a franchise with a dealer without due
  487  cause, as defined in subparagraph 2. Termination of a franchise
  488  without due cause constitutes an unfair termination, regardless
  489  of the specified time period of the franchise. Except if the
  490  grounds for the termination fall within sub-subparagraph 2.c.,
  491  the manufacturer, distributor, or wholesaler must notify a
  492  dealer in writing of the termination of the franchise at least
  493  180 days before the effective date of the termination. The
  494  notice must state the specific grounds for the termination.
  495  After delivery of the written notice, the contractual term of
  496  the franchise may not expire without the written consent of the
  497  dealer during the 180-day period. Before the 180-day period
  498  expires, a dealer may file an action in a court of competent
  499  jurisdiction seeking a determination that due cause does not
  500  exist for the proposed termination. If the dealer files an
  501  action seeking a determination that due cause does not exist,
  502  the franchise agreement remains in effect and may not be
  503  terminated until a final judgment that finds the existence of
  504  due cause is entered. The court may grant temporary,
  505  preliminary, or final injunctive relief. If a dealer cures the
  506  claimed deficiency within the 180-day period, the franchise may
  507  not be terminated.
  508         2.As used in this subparagraph, tests for determining what
  509  constitutes due cause to terminate a franchise include whether
  510  the dealer:
  511         a.Has transferred an ownership interest in the dealership
  512  without the consent of the manufacturer or distributor.
  513         b. Has made a material misrepresentation in applying for or
  514  in acting under the franchise.
  515         c.Has filed a voluntary petition in bankruptcy or has had
  516  an involuntary petition in bankruptcy filed against her or him
  517  which has not been discharged within 60 days after the filing,
  518  is in default under the provisions of a security agreement in
  519  effect with the manufacturer or distributor, or is in
  520  receivership.
  521         d.Has engaged in unfair business or trade practices.
  522         e.Has inadequately represented the manufacturer’s or
  523  distributor’s products with respect to sales, service, or
  524  warranty work.
  525         f.Has failed to comply with an applicable federal, state,
  526  or local licensing law.
  527         g.Has been convicted of a felony, the effect of which
  528  would be detrimental to the manufacturer, distributor, or
  529  dealership.
  530         h.Has failed to operate in the normal course of business
  531  for 10 consecutive business days or has terminated her or his
  532  business, except if the failure is due to an act of God, a work
  533  stoppage, or a delay due to a strike or labor difficulty, a
  534  freight embargo, or another cause over which the dealer has no
  535  control.
  536         i.Has relocated her or his place of business without the
  537  manufacturer’s or distributor’s consent.
  538         j.Has failed to substantially comply with the material
  539  terms of the franchise.
  540         3.Before termination of the franchise because of the
  541  dealer’s failure to meet marketing criteria or market
  542  penetration, the manufacturer, distributor, or wholesaler must
  543  provide written notice of such intention at least 180 days in
  544  advance. After the notice, the manufacturer or other entity
  545  issuing the notice must make good faith efforts to work with the
  546  dealer to gain the desired market share, including, without
  547  limitation, reasonably making available to the dealer an
  548  adequate inventory of new marine products and parts and
  549  competitive marketing programs. The manufacturer or other
  550  entity, at the end of the 180-day notice period, may terminate
  551  the franchise only upon further written notice specifying the
  552  reasons for determining that the dealer failed to meet
  553  reasonable marketing criteria or reasonable market penetration.
  554  The written notice must specify that termination is effective 90
  555  days after delivery of the notice. Either party may petition the
  556  court pursuant to subparagraph 1. for relief. If the dealer
  557  cures the claimed deficiency within the 90-day period, the
  558  franchise may not be terminated.
  559         4. A manufacturer, distributor, or wholesaler must provide
  560  a dealer with 90 days’ advance notice of an intent to modify a
  561  franchise or to replace the franchise with a succeeding
  562  franchise if the modification or replacement:
  563         a. Will adversely alter the rights or obligations of a
  564  dealer under an existing franchise; or
  565         b. Will substantially impair the sales, service
  566  obligations, or investment of the dealer.
  567  
  568  The notice must include the specific grounds for the
  569  modification or replacement. A dealer receiving a notice of
  570  intent to modify or to replace may file an action seeking a
  571  determination that due cause does not exist for such proposed
  572  modification or replacement. If a dealer files an action seeking
  573  a determination that due cause does not exist, the existing
  574  franchise remains in effect and may not be modified or replaced
  575  until a final judgment that finds that due cause exists is
  576  entered. The court may grant temporary, preliminary, or final
  577  injunctive relief.
  578         5.In a proceeding under this section, the manufacturer,
  579  distributor, or wholesaler has the burden of proof in
  580  establishing that due cause exists to terminate, modify, or
  581  replace a franchise with a dealer.
  582         (e) Resort to or use false or misleading advertisement in
  583  connection with its business as such manufacturer, distributor,
  584  or wholesaler.
  585         (f) Offer to sell or sell any new marine product, or parts
  586  or accessories for the marine product, to a dealer at a lower
  587  actual price than the actual price offered to another dealer for
  588  the same and identically equipped model marine product, or parts
  589  or accessories for the product, or use any device, including,
  590  but not limited to, sales promotion plans or programs, which
  591  results in a lesser actual price or a fixed price that is
  592  predetermined solely by the manufacturer or distributor. This
  593  paragraph does not apply to sales to a dealer for resale to any
  594  unit or agency of the United States, the state or any of its
  595  political subdivisions, or any municipality located within this
  596  state. Further, this paragraph does not apply if a manufacturer,
  597  distributor, or wholesaler sells or offers to sell new marine
  598  products, parts, or accessories to all of its franchised dealers
  599  at the same price.
  600         (g) Willfully discriminate, directly or indirectly, in
  601  price, programs, or terms of sale offered to a franchisee if the
  602  effect of the discrimination may be to substantially lessen
  603  competition or to give to one holder of a franchise an economic,
  604  business, or competitive advantage not offered to all holders of
  605  the same or similar franchise.
  606         (h) Prevent or attempt to prevent, by contract or
  607  otherwise, a dealer from changing the capital structure of his
  608  or her dealership or the means by or through which the dealer
  609  finances the operation of his or her dealership if:
  610         1. The dealer at all times meets any reasonable capital
  611  standard agreed to between the dealer and the manufacturer,
  612  distributor, or wholesaler; and
  613         2. The change by the dealer does not result in a change in
  614  the executive management of the dealership.
  615         (i) Prevent or attempt to prevent, by contract or
  616  otherwise, a dealer from selling, transferring, or assigning
  617  substantially all of the assets of the dealership, including the
  618  franchise, or an officer, member partner, or stockholder of the
  619  dealership from selling, transferring, or assigning any part of
  620  the equity interest of the officer, partner, or stockholder in
  621  the dealership to any other person or party. However, a dealer,
  622  officer, partner, or stockholder may not sell, transfer, or
  623  assign the franchise, ownership interest, or power of management
  624  or control of the dealership without the written consent of the
  625  manufacturer, distributor, or wholesaler, except that consent
  626  may not be unreasonably withheld. A manufacturer, distributor,
  627  or wholesaler must provide a written notice approving or
  628  rejecting a proposed sale, transfer, or assignment within 60
  629  days after receipt of a notice of:
  630         1.A dealer’s intent to sell, transfer, or assign
  631  substantially all of the assets of the dealership, including the
  632  franchise, or power of management or control; or
  633         2. The intent of an officer, member partner, or stockholder
  634  to sell, transfer, or assign an equity or ownership interest in
  635  the dealership.
  636  
  637  If the manufacturer, distributor, or wholesaler rejects the
  638  proposed sale, transfer, or assignment, it must specify the
  639  basis for rejection, or the proposed sale, transfer, or
  640  assignment is deemed approved.
  641         (j) Impose, directly or indirectly, unreasonable
  642  restrictions on the dealer relative to transfer, renewal,
  643  termination, location, or site control of a franchise.
  644         (k) Prevent a dealer from having an investment in or
  645  holding a dealership contract for the sale of competing product
  646  lines or makes of marine products, or require a dealer to
  647  provide separate facilities for competing product lines or makes
  648  of marine products.
  649         (l) Obtain money, goods, services, anything of value, or
  650  any other benefit from any other person with whom the dealer
  651  does business or employs on account of or in relation to the
  652  transactions between the dealer, the franchisor, and the other
  653  person.
  654         (m) Require a dealer to waive any of the protections or
  655  rights provided under ss. 686.80-686.811.
  656         (3) A dealer may not:
  657         (a) Require a retail purchaser of new marine products, as a
  658  condition of sale and delivery of the marine products, to
  659  purchase special features, appliances, equipment, parts, or
  660  accessories not desired or requested by the purchaser. This
  661  prohibition does not apply to special features, appliances,
  662  equipment, parts, or accessories that are already installed when
  663  the marine product is received by the dealer from the
  664  manufacturer, distributor, or wholesaler of the marine products.
  665         (b) Represent and sell as new and unused a marine product
  666  that has been used and operated for demonstration or other
  667  purposes without stating to the purchaser before the sale the
  668  approximate amount of use the marine product has undergone.
  669         (c) Resort to or use a false or misleading advertisement in
  670  connection with her or his business as a dealer.
  671         Section 10. Section 686.809, Florida Statutes, is created
  672  to read:
  673         686.809Unenforceable agreements.—Any part of a franchise
  674  agreement which violates ss. 686.80-686.811 is deemed against
  675  public policy and is void.
  676         Section 11. Section 686.81, Florida Statutes, is created to
  677  read:
  678         686.81Remedies.—
  679         (1) In addition to temporary, preliminary, or final
  680  injunctive relief as provided in s. 686.808(3)(d), a person who
  681  is aggrieved or injured in his or her business or property as a
  682  result of a violation of ss. 686.80-686.811 may bring an action
  683  in the circuit court against the manufacturer, distributor, or
  684  wholesaler, and shall recover three times the actual damages
  685  sustained and the costs of the action, including a reasonable
  686  attorney fee.
  687         (2) In addition to any other remedy or relief to which a
  688  person is entitled, a person aggrieved by a violation of ss.
  689  686.80-686.811 may bring an action to obtain a declaratory
  690  judgment that an act, action, or practice violates such sections
  691  and to enjoin a manufacturer, distributor, wholesaler, or dealer
  692  who has violated, is violating, or is otherwise likely to
  693  violate such sections.
  694         (3) If the action is one of common or general interest to
  695  many persons or if the parties are numerous and it is
  696  impracticable to bring them all before the court, one or more
  697  may bring a class action for the benefit of the whole, including
  698  an action for injunctive relief.
  699         (4) In an action for money damages, if a judge or jury
  700  finds that the defendant acted maliciously, the judge or jury
  701  may award punitive damages as permitted by state law.
  702         (5) The Department of Legal Affairs or the state attorney,
  703  if a violation of ss. 686.80-686.811 occurs in the judicial
  704  circuit of the state attorney, or a statewide association having
  705  at least 30 dealer members, may bring an action for injunctive
  706  or other appropriate civil relief for any violation of ss.
  707  686.80-686.811.
  708         (6) The remedies provided in this section are in addition
  709  to any other remedies provided by law or in equity.
  710         Section 12. Section 686.811, Florida Statutes, is created
  711  to read:
  712         686.811Effect of act on other remedies.Sections 686.80
  713  686.811 do not preempt local ordinances that regulate the
  714  manufacturing, distribution, wholesaling, advertising, or sale
  715  of marine products unless the ordinances are inconsistent with
  716  such sections.
  717         Section 13. This act shall take effect July 1, 2012, and
  718  applies to contracts entered into, renewed, or amended on or
  719  after that date.