Florida Senate - 2023 COMMITTEE AMENDMENT
Bill No. CS for SB 712
Ì335364/Î335364
LEGISLATIVE ACTION
Senate . House
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The Committee on Commerce and Tourism (Avila) recommended the
following:
1 Senate Amendment to Amendment (224252) (with title
2 amendment)
3
4 Delete lines 19 - 194
5 and insert:
6 distributor, or a licensee, or an affiliate thereof; or
7 (b) Who has more than 30 percent of its equity interest
8 directly or indirectly controlled or owned, beneficially or of
9 record, through any form of ownership structure, by one or more
10 persons who also directly or indirectly control or own,
11 beneficially or of record, more than 30 40 percent of the voting
12 equity interests of a manufacturer, an importer, a distributor,
13 or a licensee, or an affiliate thereof; or
14 (b) Who shares directors or officers or partners with a
15 manufacturer.
16 (c) Notwithstanding the foregoing, an entity that would
17 otherwise be considered a common entity of a distributor under
18 paragraph (a) or paragraph (b) because of its relation to a
19 distributor is not considered a common entity of that
20 distributor if:
21 1. The distributor that the entity is related to was a
22 licensed distributor on March 1, 2023;
23 2. The entity is not a common entity of a manufacturer or
24 importer; and
25 3. The distributor that the entity is related to is not,
26 and has never been, a common entity of a manufacturer or
27 importer.
28 (8) “Independent person” means a person who is not an
29 agent, parent, subsidiary, common entity, officer, director, or
30 an employed representative of a licensee, manufacturer,
31 importer, or distributor.
32 (14) “Motor vehicle dealer association” means a not-for
33 profit entity organized under the laws of this state and
34 qualified as tax-exempt under s. 501(c)(6) of the Internal
35 Revenue Code which acts as a trade association that primarily
36 represents the interests of franchised motor vehicle dealers and
37 has a membership of at least 500 franchised motor vehicle
38 dealers as defined in s. 320.27(1)(c)1.
39 (16)(15) “Sell,” “selling,” “sold,” “exchange,” “retail
40 sales,” and “leases” includes:
41 (a) Accepting a deposit or receiving a payment for the
42 retail purchase, lease, or other use of a motor vehicle, but
43 does not include facilitating a motor vehicle dealer’s
44 acceptance of a deposit or receipt of a payment from a consumer,
45 and does not include receiving payment under a retail
46 installment sale contract;
47 (b) Accepting a reservation from a retail consumer for a
48 specific motor vehicle identified by a vehicle identification
49 number or other product identifier;
50 (c) Setting the retail price for the purchase, lease, or
51 other use of a motor vehicle, but does not include setting a
52 Manufacturer’s Suggested Retail Price;
53 (d) Offering or negotiating with a retail consumer terms
54 for the purchase, lease, or other use of a motor vehicle;
55 (e) Offering or negotiating with a retail consumer a value
56 for a motor vehicle being traded in as part of the purchase,
57 lease, or other use of a motor vehicle, but does not include a
58 website or other means of electronic communication that
59 identifies to a consumer a conditional trade-in value and that
60 contains language informing the consumer that the trade-in value
61 is not binding on any motor vehicle dealer;
62 (f) Any transaction where the title of a motor vehicle or a
63 used motor vehicle is transferred to a retail consumer; or, and
64 also
65 (g) Any retail lease transaction where a retail consumer
66 customer leases a vehicle for a period of at least 12 months,
67 but does not include administering lease agreements, taking
68 assignments of leases, performing required actions pursuant to
69 such leases, or receiving payments under a lease agreement that
70 was originated by a motor vehicle dealer. Establishing a price
71 for sale pursuant to s. 320.64(24) does not constitute a sale or
72 lease.
73 Section 2. Section 320.605, Florida Statutes, is amended to
74 read:
75 320.605 Legislative intent.—It is the intent of the
76 Legislature to protect the public health, safety, and welfare of
77 the citizens of the state by regulating the licensing of motor
78 vehicle dealers and manufacturers, maintaining competition,
79 providing consumer protection and fair trade and providing
80 minorities with opportunities for full participation as motor
81 vehicle dealers. Sections 320.61-320.70 are intended to apply
82 solely to the licensing of manufacturers, factory branches,
83 distributors, and importers and do not apply to non-motor
84 vehicle-related businesses.
85 Section 3. Subsections (18), (23), and (24) of section
86 320.64, Florida Statutes, are amended to read:
87 320.64 Denial, suspension, or revocation of license;
88 grounds.—A license of a licensee under s. 320.61 may be denied,
89 suspended, or revoked within the entire state or at any specific
90 location or locations within the state at which the applicant or
91 licensee engages or proposes to engage in business, upon proof
92 that the section was violated with sufficient frequency to
93 establish a pattern of wrongdoing, and a licensee or applicant
94 shall be liable for claims and remedies provided in ss. 320.695
95 and 320.697 for any violation of any of the following
96 provisions. A licensee is prohibited from committing the
97 following acts:
98 (18) The applicant or licensee has established a system of
99 motor vehicle allocation or distribution or has implemented a
100 system of allocation or distribution of motor vehicles to one or
101 more of its franchised motor vehicle dealers which:
102 (a) Reduces or alters allocations or supplies of new motor
103 vehicles to the dealer to achieve, directly or indirectly, a
104 purpose that is prohibited by ss. 320.60-320.70;
105 (b) Conditionally or unconditionally reserves a specific
106 motor vehicle identified by vehicle identification number or
107 other unique identifier for a specifically named person, except
108 for purposes of replacing a consumer’s vehicle pursuant to
109 chapter 681;
110 (c) Requires or incentivizes motor vehicle dealers to sell
111 or lease, or to negotiate the sale or lease of, a specific motor
112 vehicle identified by vehicle identification number or other
113 unique identifier to a specifically named person;
114 (d) Requires or incentivizes motor vehicle dealers to sell
115 or lease a motor vehicle at a specified price or profit margin
116 or restricts the price at which a motor vehicle dealer may sell
117 or lease a motor vehicle; or
118 (e) Is, or which otherwise is unfair, inequitable,
119 unreasonably discriminatory, or not supportable by reason and
120 good cause after considering the equities of the affected motor
121 vehicles dealer or dealers. As used in this paragraph, the term
122 “unfair” includes, but is not limited to, refusing or failing to
123 offer to any dealer an equitable supply of new vehicles under
124 its franchise, by model, mix, or color, as the licensee offers
125 or allocates to its other same line-make dealers in this state
126 or using the number of motor vehicles preordered or reserved by
127 consumers as a factor in determining the allocation of motor
128 vehicles to motor vehicle dealers.
129
130 An applicant or licensee shall maintain for 3 years records that
131 describe its methods or formula of allocation and distribution
132 of its motor vehicles and records of its actual allocation and
133 distribution of motor vehicles to its motor vehicle dealers in
134 this state. As used in this subsection, “unfair” includes,
135 without limitation, the refusal or failure to offer to any
136 dealer an equitable supply of new vehicles under its franchise,
137 by model, mix, or colors as the licensee offers or allocates to
138 its other same line-make dealers in the state.
139 (23) The applicant or licensee has engaged in any of the
140 activities of a motor vehicle dealer as defined in s.
141 320.60(13)(a) or any activities described in s. 320.60(16) or
142 has competed or is competing with respect to any activity
143 covered by the franchise agreement with a motor vehicle dealer
144 of the same line-make located in this state with whom the
145 applicant or licensee has entered into a franchise agreement,
146 except as permitted in s. 320.645 or in subsection (24) with
147 respect to the remote electronic transmission of a permanent or
148 temporary feature or improvement of a motor vehicle.
149 (24) The applicant or licensee, or common entity thereof,
150 has sold or leased a motor vehicle to any retail consumer in
151 this state, or has sold or activated for a fee to any retail
152 consumer in the state any permanent or temporary motor vehicle
153 feature or improvement that functions through hardware or
154 components installed on the motor vehicle, except through a
155 motor vehicle dealer properly licensed pursuant to s. 320.27 and
156 holding a franchise agreement for the line-make that includes
157 the motor vehicle. Notwithstanding this subsection, an applicant
158 or a licensee, or common entity thereof, may sell or activate
159 for a fee a permanent or temporary motor vehicle feature or
160 improvement to a retail consumer in this state only if the
161 feature or improvement is provided directly to the motor vehicle
162 through remote electronic transmission, provided that if such
163 motor vehicle was sold or leased as new by a motor vehicle
164 dealer in this state within the 3-year period preceding such
165 remote electronic transmission, the applicant or licensee must
166 pay such motor vehicle dealer a minimum of 8 percent of the
167 payment received by the applicant, licensee, or common entity
168 from the sale of the feature or improvement. As used in this
169 subsection, the term “feature or improvement” includes the
170 activation or use of motor vehicle components or hardware, but
171 does not include services that require the transmission of data
172 or information to or from the motor vehicle while the service is
173 being used. Payments required under this subsection shall be
174 made within 30 days after the date of sale of the feature or
175 improvement. This subsection section does not apply to sales by
176 the
177
178 ================= T I T L E A M E N D M E N T ================
179 And the title is amended as follows:
180 Delete lines 428 - 444
181 and insert:
182 applicability; requiring certain payments to be made
183 within a certain timeframe; amending s. 320.642, F.S.;
184 conforming cross-references; amending s. 320.645,
185 F.S.; revising provisions prohibiting a manufacturer,
186 a distributor, or an importer from owning, operating,
187 or controlling a motor vehicle dealership in this
188 state; specifying when certain licenses may be and are
189 prohibited from being issued; revising exceptions to
190 certain prohibitions on licensees; providing
191 applicability; making technical changes; deleting the
192 definition of the term “independent person”;
193 conforming cross-references; amending s. 320.67, F.S.;
194 requiring the Department of Highway Safety and Motor
195 Vehicles to conduct an inquiry relating to certain
196 written complaints; providing purposes of the
197 department’s use of a subpoena; authorizing the
198 department to allow a written response to the
199 complaint; requiring the department to commence the
200 inquiry within a certain