CODING: Words stricken are deletions; words underlined are additions.House Bill 0801
Florida House of Representatives - 1997 HB 801
By Representative Mackey
1 A bill to be entitled
2 An act relating to outdoor power equipment;
3 creating ss. 686.60-686.614, F.S.; regulating
4 sales and distribution of, and dealer
5 relationships relating to, outdoor power
6 equipment; providing a short title; providing
7 legislative findings and intent; providing
8 definitions; providing application; providing
9 for warranty agreements; providing for claims
10 and compensation of dealers; providing for
11 parts availability and return; providing for
12 repurchase of inventory under certain
13 circumstances; providing for compensation for
14 inventory under certain circumstances;
15 providing for indemnification of dealers under
16 certain legal actions; specifying unlawful acts
17 and practices; specifying unenforceable
18 contracts or agreements; providing remedies;
19 providing for effect on other remedies;
20 providing an effective date.
21
22 Be It Enacted by the Legislature of the State of Florida:
23
24 Section 1. Sections 686.60, 686.601, 686.602, 686.603,
25 686.604, 686.605, 686.606, 686.607, 686.608, 686.609, 686.611,
26 686.612, 686.613, and 686.614, Florida Statutes, are created
27 to read:
28 686.60 Outdoor Power Equipment Servicing
29 Manufacturers, Distributors, Wholesalers, and Dealers Act;
30 short title.--Sections 686.601-686.614 may be cited as the
31
1
CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 1997 HB 801
59-316A-97
1 "Outdoor Power Equipment Servicing Manufacturers,
2 Distributors, Wholesalers, and Dealers Act."
3 686.601 Legislative finding and intent;
4 construction.--
5 (1) The Legislature finds and declares that the
6 distribution and sale of outdoor power equipment in this state
7 vitally affects the general economy of the state, the public
8 interest, the public safety, the ecology of this state, and
9 the public welfare and that, in the exercise of its police
10 power, it is necessary to regulate the conduct of outdoor
11 power equipment manufacturers, distributors, wholesalers, and
12 dealers and their representatives doing business in this state
13 in order to prevent fraud, unfair business practices, unfair
14 methods of competition, impositions, and other abuses upon its
15 citizens.
16 (2) In order to promote the intention and policies
17 announced in this section, the provisions of ss.
18 686.601-686.614 shall be liberally construed.
19 686.602 Definitions of terms used in ss.
20 686.601-686.614.--In construing ss. 686.601-686.614, unless
21 the context otherwise requires, the word, phrase, or term:
22 (1) "Dealer" means a person who sells, solicits, or
23 advertises the sale of new and used outdoor power equipment to
24 the consuming public and services such equipment, but does not
25 include:
26 (a) A receiver, trustee, administrator, executor,
27 personal representative, guardian, or other person appointed
28 by or acting under judgment, decree, or order of any court.
29 (b) A public officer while performing his duties as
30 such officer.
31
2
CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 1997 HB 801
59-316A-97
1 (c) A person making casual or isolated sales of his
2 own outdoor power equipment not subject to sales tax under the
3 laws of this state.
4 (d) A person engaged in the auction sale of outdoor
5 power equipment.
6 (e) A dealer in used outdoor power equipment.
7 (2) "Distributor" or "wholesaler" means any person,
8 firm, association, corporation, or company that sells or
9 distributes new outdoor power equipment to dealers and that
10 maintains distributor representatives within this state.
11 (3) "Distributor branch" means a branch office
12 maintained by a distributor or wholesaler which sells or
13 distributes new outdoor power equipment to dealers.
14 (4) "Distributor representative" means a
15 representative employed by a distributor, distributor branch,
16 or wholesaler.
17 (5) "Factory branch" means a branch office maintained
18 by a manufacturer which manufactures and assembles outdoor
19 power equipment for sale to distributors of outdoor power
20 equipment or to dealers or which is maintained for directing
21 and supervising the representatives of the manufacturer.
22 (6) "Factory representative" means a representative
23 employed by a manufacturer or factory branch for the purpose
24 of making or promoting the sale of outdoor power equipment or
25 for supervising, servicing, introducing, or contracting with
26 dealers or prospective dealers.
27 (7) "Fraud" means and includes actual fraud or
28 constructive fraud as normally defined, in addition to the
29 following:
30
31
3
CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 1997 HB 801
59-316A-97
1 (a) A misrepresentation in any manner, whether
2 intentionally false or arising from gross negligence, of a
3 material fact.
4 (b) A promise or representation not made honestly and
5 in good faith.
6 (c) An intentional failure to disclose a material
7 fact.
8 (d) Any artifice employed to deceive another.
9 (8) "Manufacturer" means any person engaged in the
10 business of manufacturing or assembling new and unused outdoor
11 power equipment.
12 (9) "New outdoor power equipment" means outdoor power
13 equipment which has not been previously sold to and put into
14 regular use or service by any person, except to a distributor,
15 wholesaler, or dealer for resale.
16 (10) "Outdoor power equipment" means two-cycle and
17 four-cycle gas, diesel, and electric engines and any other
18 type of equipment used to maintain commercial, public, and
19 residential lawns and gardens or used in landscape, turf, golf
20 course, green nursery, or forestry or tree maintenance.
21 (11) "Person" means a natural person, corporation,
22 association, partnership, trust, or other business entity and,
23 in the case of a business entity, includes any other entity in
24 which the business entity has a majority interest or which it
25 effectively controls, as well as the individual officers,
26 directors, and other persons in active control of the
27 activities of each such entity.
28 (12) "Sale" means and includes the issuance, transfer,
29 agreement for transfer, exchange, pledge, hypothecation, or
30 mortgage in any manner or form, whether by transfer in trust
31 or otherwise, of any outdoor power equipment or interest
4
CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 1997 HB 801
59-316A-97
1 therein, or of any servicing dealer agreement related thereto,
2 for a consideration and any option, subscription or other
3 contract, or solicitation, looking to a sale, or offer or
4 attempt to sell in any form, whether in oral or written form
5 for a consideration.
6 (13) "Servicing dealer" means a private business which
7 has contracted with the manufacturer or distributor to sell
8 its products at the retail level and which is required to
9 undergo training in the sale and servicing of such products.
10 (14) "Servicing dealer agreement" means a contract or
11 agreement, express or implied, oral or written, for a definite
12 or indefinite period of time, in which a manufacturer,
13 distributor, or wholesaler grants to a dealer permission to
14 use a trade name, service mark, trademark, or a related
15 characteristic and in which there is a common interest or
16 community of interest in the marketing of outdoor power
17 equipment or services related thereto at wholesale or retail,
18 whether leasing, sale, or otherwise.
19 686.603 Application.--
20 (1) Any person who engages directly or indirectly in
21 purposeful agreements or contracts within this state in
22 connection with the sale or advertising for sale of new
23 outdoor power equipment and parts is subject to ss.
24 686.601-686.614 and to the jurisdiction of the courts of this
25 state for violations of such sections in accordance with the
26 provisions of the laws of this state.
27 (2) Sections 686.601-686.614 apply to all written or
28 oral agreements between a manufacturer, distributor, or
29 wholesaler with a dealer, including, but not limited to, the
30 servicing dealer agreement; sales of goods, services, and
31 advertising; leases or mortgages of real or personal property;
5
CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 1997 HB 801
59-316A-97
1 promises to pay; security interests; pledges; insurance
2 contracts; advertising contracts; construction or installation
3 contracts; servicing contracts; and all other such agreements
4 in which the manufacturer, distributor, or wholesaler has any
5 direct or indirect interest.
6 (3) Sections 686.601-686.614 apply to all continuing
7 contracts now in effect which have no expiration date and to
8 all other contracts entered into or renewed after October 1,
9 1997.
10 686.604 Warranty agreements; claims; compensation of
11 dealers.--
12 (1) Every manufacturer, distributor, wholesaler,
13 factory branch or division, distributor branch or division, or
14 wholesale branch or division shall provide a fair and
15 reasonable warranty agreement on any new outdoor power
16 equipment which it sells and shall fairly compensate each of
17 its dealers for labor and parts used in fulfilling such
18 warranty agreements.
19 (2)(a) Each claim for payment under such warranty
20 agreements made by a dealer for such labor and parts shall be
21 paid within 30 days following its approval. Each such claim
22 shall be either approved or disapproved within 30 days after
23 its receipt. When any such claim is disapproved, the dealer
24 who submitted it shall be notified in writing of such
25 disapproval within such period, and such notice shall state
26 the specific grounds upon which the disapproval is based.
27 (b) Any special handling of claims required of the
28 dealer by the manufacturer, distributor, wholesaler, factory
29 branch or division, distributor branch or division, or
30 wholesale branch or division, which handling is not uniformly
31 required of all dealers of that make, may be enforced only
6
CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 1997 HB 801
59-316A-97
1 after 30 days' notice in writing to the dealer and upon good
2 and sufficient reason.
3 (3)(a) The minimum lawful basis for compensating a
4 dealer for warranty work, as provided for in this section,
5 shall be calculated for labor in accordance with the
6 reasonable and customary amount of time required to complete
7 such work, expressed in hours and fractions of hours
8 multiplied by the dealer's established hourly retail labor
9 rate. Prior to filing a claim for reimbursement for warranty
10 work, the dealer must notify the applicable manufacturer,
11 distributor, or wholesaler of his hourly retail labor rate.
12 (b) The minimum lawful basis for compensation to the
13 dealer for parts used in fulfilling such warranty work shall
14 be at the dealer's costs for such parts, including all freight
15 and handling charges applicable to such parts, plus 15 percent
16 of the sum of such costs and charges to reimburse the dealer's
17 reasonable cost of doing business and providing such warranty
18 service on behalf of the manufacturer.
19 686.605 Parts; availability; return.--
20 (1) Every manufacturer, distributor, and wholesaler
21 shall specify, and every dealer shall provide and fulfill,
22 reasonable predelivery and preparation obligations for its
23 outdoor power equipment prior to delivery of the outdoor power
24 equipment to retail purchasers.
25 (2) Every manufacturer, distributor, and wholesaler
26 shall provide for the availability of repair parts throughout
27 the reasonable useful life of any outdoor power equipment
28 sold.
29 (3) Every manufacturer, distributor, and wholesaler
30 shall provide to their dealers, annually, an opportunity to
31 return a portion of their surplus parts inventories for
7
CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 1997 HB 801
59-316A-97
1 credit. The surplus procedure shall be administered as
2 follows:
3 (a) The manufacturer, distributor, or wholesaler may
4 specify, and thereupon notify their dealers of, a time period
5 of at least 60 days' duration during which the dealers may
6 submit their surplus parts lists and return their surplus
7 parts to the manufacturer, distributor, or wholesaler.
8 (b) If a manufacturer, distributor, or wholesaler has
9 not notified a dealer of a specific time period for returning
10 surplus parts within the preceding 12 months, they shall
11 authorize and allow the dealer's surplus parts return request
12 within 30 days after receipt of such request from the dealer.
13 (c) A manufacturer, distributor, or wholesaler must
14 allow surplus parts return authority on a dollar value of
15 parts equal to 6 percent of the total dollar value of parts
16 purchased from the manufacturer, distributor, or wholesaler by
17 the dealer during the 12-month period immediately preceding
18 the notification to the dealer by the manufacturer,
19 distributor, or wholesaler of the surplus parts return
20 program, or the month the dealer's return request is made,
21 whichever is applicable. However, the dealer may, at his
22 option, elect to return a dollar value of his surplus parts
23 equal to less than 6 percent of the total dollar value of
24 parts purchased by the dealer from the manufacturer,
25 distributor, or wholesaler during the preceding 12-month
26 period as provided herein.
27 (d) No obsolete or superseded part may be returned,
28 but any part listed in the manufacturer's, distributor's, or
29 wholesaler's current returnable parts list at the date of
30 notification of the surplus parts return program by the
31 manufacturer, distributor, or wholesaler to the dealer, or the
8
CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 1997 HB 801
59-316A-97
1 date of the dealer's parts return request, whichever is
2 applicable, is eligible for return and credit specified.
3 However, returned parts must be in new and unused condition
4 and must have been purchased from the manufacturer,
5 distributor, or wholesaler to whom they are returned.
6 (e) The minimum lawful credit to be allowed for
7 returned parts is 85 percent of the wholesale cost of the
8 parts as listed in the manufacturer's, distributor's, or
9 wholesaler's current returnable parts list at the date of the
10 notification of the surplus parts return program by the
11 manufacturer, wholesaler, or distributor to the dealer, or the
12 date of the dealer's parts return request, whichever is
13 higher.
14 (f) Applicable credit must be issued or furnished by
15 the manufacturer, distributor, or wholesaler to the dealer
16 within 60 days after receipt of the returned parts.
17 (g) The packing and return freight expense incurred in
18 any return of surplus parts pursuant to the terms of this
19 section shall be borne by the dealer.
20 686.606 Repurchase of inventory upon termination of
21 servicing dealer agreement.--
22 (1) Whenever any dealer enters into a servicing dealer
23 agreement with a manufacturer, distributor, or wholesaler in
24 which agreement the dealer agrees to maintain an inventory of
25 outdoor power equipment or repair parts and the agreement is
26 subsequently voluntarily or involuntarily terminated, the
27 manufacturer, distributor, or wholesaler shall repurchase the
28 inventory as provided in this section. However, the dealer
29 may keep the inventory if he desires. If the dealer has any
30 outstanding debts to the manufacturer, distributor, or
31
9
CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 1997 HB 801
59-316A-97
1 wholesaler, then the repurchase amount may be credited to the
2 dealer's account.
3 (2) If the dealer decides not to keep the inventory,
4 the manufacturer, distributor, or wholesaler shall repurchase
5 that inventory previously purchased from him and held by the
6 dealer on the date of termination of the contract. The
7 manufacturer, distributor, or wholesaler shall pay:
8 (a) One hundred percent of the actual dealer cost,
9 including freight, of all new, unsold, undamaged, and complete
10 outdoor power equipment or other items of such equipment which
11 are resalable, less a reasonable allowance for depreciation
12 due to usage by the dealer and deterioration directly
13 attributable to weather conditions at the dealer's location;
14 and
15 (b) Eighty-five percent of the current wholesale price
16 of all new, unused, and undamaged repair parts and accessories
17 which are listed in the manufacturer's, distributor's, or
18 wholesaler's current returnable parts list. The manufacturer,
19 distributor, or wholesaler shall also pay the dealer 6 percent
20 of the current wholesale price on all new, unused, and
21 undamaged repair parts returned to cover the cost of handling,
22 packing, and loading. However, the manufacturer, distributor,
23 or wholesaler shall have the option of performing the
24 handling, packing, and loading in lieu of paying the 6-percent
25 sum imposed in this subsection for these services; and, in
26 this event, after receipt by the dealer of the full repurchase
27 amount as provided in this section, the dealer shall make
28 available to the manufacturer, distributor, or wholesaler, at
29 the dealer's address or at the places at which the outdoor
30 power equipment is located, all outdoor power equipment
31 previously purchased by the dealer.
10
CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 1997 HB 801
59-316A-97
1 (3) Upon payment within a reasonable time of the
2 repurchase amount to the dealer, the title and right of
3 possession to the repurchased inventory shall transfer or be
4 transferred to the manufacturer, distributor, or wholesaler,
5 as the case may be.
6 (4) The provisions of this section do not require the
7 repurchase from a dealer of:
8 (a) Any repair part which has a limited storage life
9 or is otherwise subject to deterioration.
10 (b) Any single repair part which is priced as a set of
11 two or more items.
12 (c) Any repair part which because of its condition is
13 not resalable as a new part without repackaging or
14 reconditioning.
15 (d) Any inventory for which the dealer is unable to
16 furnish evidence, reasonably satisfactory to the manufacturer,
17 distributor, or wholesaler, of good title, free and clear of
18 all claims, liens, and encumbrances.
19 (e) Any inventory which the dealer desires to keep, if
20 the dealer has a contractual right to keep it.
21 (f) Any outdoor power equipment or item of such
22 equipment which is not in new, unused, undamaged, and complete
23 condition.
24 (g) Any outdoor power equipment or item of such
25 equipment which has been used by the dealer or has
26 deteriorated because of weather conditions at the dealer's
27 location unless the manufacturer, distributor, or wholesaler
28 receives a reasonable allowance for such usage or
29 deterioration.
30 (h) Any repair parts which are not in new, unused, and
31 undamaged condition.
11
CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 1997 HB 801
59-316A-97
1 (i) Any inventory which was ordered by the dealer on
2 or after the date of receipt of the notification of
3 termination of the servicing dealer agreement.
4 (j) Any inventory which was acquired by the dealer
5 from any source other than the manufacturer, distributor, or
6 wholesaler.
7 (5) If any manufacturer, distributor, or wholesaler
8 fails or refuses to repurchase any inventory covered under the
9 provisions of this section within 60 days after termination of
10 a dealer's contract, he is civilly liable for 100 percent of
11 the current wholesale price of the inventory plus any freight
12 charges paid by the dealer, the dealer's reasonable attorney's
13 fees, court costs, and interest on the current wholesale price
14 computed at the legal interest rate provided in s. 687.01 from
15 the 61st day after termination.
16 686.607 Repurchase of inventory upon death or
17 incapacity of dealer.--
18 (1) In the event of the death or incapacity of a
19 dealer or the majority stockholder of a corporation operating
20 as a dealer, the manufacturer, distributor, or wholesaler
21 shall, at the option of the heirs at law, if the dealer died
22 intestate, or the devisees or transferees under the terms of
23 the deceased dealer's last will and testament, if the dealer
24 died testate, repurchase the inventory from such heirs or
25 devisees as if the manufacturer, distributor, or wholesaler
26 had terminated the contract; and the inventory repurchase
27 provisions of s. 686.606 are made expressly applicable to the
28 repurchase under this section. The heirs or devisees shall
29 have 1 year from the date of the death of the dealer or
30 majority stockholder to exercise their option under this
31 section. However, nothing in this section requires the
12
CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 1997 HB 801
59-316A-97
1 repurchase of inventory if the heirs or devisees and the
2 manufacturer, distributor, or wholesaler enter into a new
3 agreement to operate the retail dealership.
4 (2) This section is subject to that portion of the
5 manufacturer's, distributor's, or wholesaler's contract or
6 agreement with the dealer pertaining to death of the dealer or
7 succession to the extent such contract or agreement is not
8 inconsistent with this section.
9 686.608 Compensation for inventory upon refusal to
10 renew, termination of, or restriction on transfer of a
11 servicing dealer agreement.--It is unlawful for the
12 manufacturer, distributor, or wholesaler, without due cause,
13 to fail to renew a servicing dealer agreement on terms then
14 equally available to all their dealers, to terminate an
15 agreement, or to restrict the transfer of an agreement unless
16 the dealer receives fair and reasonable compensation for the
17 inventory of the business. As used in this section, the term
18 "due cause" shall be construed in accordance with the
19 definition of due cause contained in s. 686.611(3)(c)2.
20 686.609 Indemnification of dealer with respect to
21 legal actions.--A manufacturer, distributor, or wholesaler
22 shall fully indemnify and hold harmless a dealer against any
23 losses including, but not limited to, court costs and
24 reasonable attorney's fees or damages arising out of any
25 complaint, claim, or lawsuit involving, but not limited to,
26 strict liability, negligence, misrepresentation, express or
27 implied warranty, or rescission of the sale when the
28 complaint, claim, or lawsuit relates to the manufacture,
29 assembly, or design of new items covered by ss.
30 686.601-686.614, parts or accessories, or other functions by
31
13
CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 1997 HB 801
59-316A-97
1 the manufacturer, distributor, or wholesaler which are beyond
2 the control of the dealer.
3 686.611 Unlawful acts and practices.--Unfair methods
4 of competition and unfair or deceptive acts or practices in
5 the conduct of the manufacturing, distribution, wholesaling,
6 sale, and advertising of outdoor power equipment are declared
7 to be unlawful.
8 (1) It is deemed a violation of this section for any
9 manufacturer, factory branch, factory representative,
10 distributor, distributor branch, distributor representative,
11 wholesaler, or dealer to engage in any action which is
12 arbitrary, capricious, in bad faith, or unconscionable and
13 which causes damage in terms of law or equity to any of the
14 parties or to the public.
15 (2) It is deemed a violation of this section for a
16 manufacturer, factory branch or division, distributor,
17 distributor branch or division, wholesaler, or wholesale
18 branch or division, or officer, agent, or other representative
19 thereof, to coerce, compel, or attempt to coerce or compel any
20 dealer:
21 (a) To order or accept delivery of any outdoor power
22 equipment or item of such equipment, parts or accessories
23 therefor, or other commodity or commodities which such dealer
24 has not voluntarily ordered.
25 (b) To order or accept delivery of any outdoor power
26 equipment with special features, accessories, or equipment not
27 included in the base list price of such outdoor power
28 equipment as publicly advertised by the manufacturer of the
29 outdoor power equipment.
30 (3) It is deemed a violation of this section for a
31 manufacturer, factory branch or division, distributor,
14
CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 1997 HB 801
59-316A-97
1 distributor branch or division, wholesaler, or wholesale
2 branch or division, or officer, agent, or other representative
3 thereof:
4 (a) To refuse to deliver to any dealer having a
5 contractual agreement for the retail sale of new outdoor power
6 equipment sold or distributed by such manufacturer, factory
7 branch or division, distributor branch or division, or
8 wholesale branch or division, in reasonable quantities and
9 within a reasonable time after receipt of the dealer's order,
10 any outdoor power equipment or item of such equipment covered
11 by such agreement specifically advertised or represented by
12 such manufacturer, factory branch or division, distributor,
13 distributor branch or division, wholesaler, or wholesale
14 branch or division to be available for immediate delivery.
15 However, the failure to deliver any such outdoor power
16 equipment or item of such equipment is not considered a
17 violation of this section if such failure is due to a prudent
18 and reasonable restriction on the extension of credit by the
19 manufacturer, distributor, or wholesaler to the dealer, an act
20 of God, a work stoppage or delay due to a strike or labor
21 difficulty, a bona fide shortage of materials, a freight
22 embargo, or another cause over which the manufacturer,
23 distributor, or wholesaler, or any agent thereof, has no
24 control whatsoever.
25 (b) To coerce, compel, or attempt to coerce or compel
26 any dealer to enter into any agreement, whether written or
27 oral, supplementary to an existing servicing dealer agreement
28 with such manufacturer, factory branch or division,
29 distributor, distributor branch or division, wholesaler, or
30 wholesale branch or division, or officer, agent, or other
31 representative thereof; or to do any other act prejudicial to
15
CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 1997 HB 801
59-316A-97
1 such dealer by threatening to cancel any contractual agreement
2 existing between such manufacturer, factory branch or
3 division, distributor, distributor branch or division,
4 wholesaler, or wholesale branch or division and such dealer.
5 However, notice in good faith to any dealer of such dealer's
6 violation or breach of any terms or provisions of such
7 contractual agreement does not constitute a violation of this
8 section if such notice is in writing and is mailed by
9 registered or certified mail to such dealer at his current
10 business address and such notice contains the specific facts
11 as to the dealer's violation or breach of such contractual
12 agreement.
13 (c)1. To terminate or cancel the selling agreement of
14 any dealer without due cause, as defined in subparagraph 2.
15 The nonrenewal of a selling agreement, without due cause,
16 constitutes an unfair termination or cancellation, regardless
17 of the specified time period of such selling agreement. Except
18 when the ground for such termination or cancellation falls
19 within sub-subparagraph 2.c., such manufacturer, factory
20 branch or division, distributor, distributor branch or
21 division, wholesaler, or wholesale branch or division, or
22 officer, agent, or other representative thereof, shall notify
23 a dealer in writing of the termination or cancellation of the
24 selling agreement of such dealer at least 90 days before the
25 effective date of the termination or cancellation, stating the
26 specific ground for such termination or cancellation. In no
27 event shall the contractual term of any such selling agreement
28 expire, without the written consent of the dealer involved,
29 prior to the expiration of at least 90 days following such
30 written notice. During the 90-day period, either party may,
31 in appropriate circumstances, petition a court of competent
16
CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 1997 HB 801
59-316A-97
1 jurisdiction to modify such 90-day stay or to extend it
2 pending a final determination of such proceeding on the
3 merits. The court shall have authority to grant temporary,
4 preliminary, and final injunctive relief.
5 2. As used in this subparagraph, tests for determining
6 what constitutes due cause for a manufacturer, distributor, or
7 wholesaler to terminate, cancel, or refuse to renew a
8 servicing dealer agreement include whether the dealer:
9 a. Has transferred a majority ownership interest in
10 the dealership without the manufacturer's, distributor's, or
11 wholesaler's consent;
12 b. Has made a material misrepresentation in applying
13 for or in acting under the agreement;
14 c. Has filed a voluntary petition in bankruptcy or has
15 had an involuntary petition in bankruptcy filed against the
16 dealer which has not been discharged within 60 days after the
17 filing, is in default under the provisions of a security
18 agreement in effect with the manufacturer, distributor, or
19 wholesaler, or is in receivership;
20 d. Has engaged in unfair business or trade practices;
21 e. Has inadequately represented the manufacturer's,
22 distributor's, or wholesaler's products with respect to sales,
23 service, or warranty work;
24 f. Has inadequate and insufficient sales and service
25 facilities and personnel;
26 g. Has failed to comply with an applicable federal,
27 state, or local licensing law;
28 h. Has been convicted of a crime, the effect of which
29 would be detrimental to the manufacturer, distributor,
30 wholesaler, or dealership;
31
17
CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 1997 HB 801
59-316A-97
1 i. Has failed to operate in the normal course of
2 business for 10 consecutive business days or has terminated
3 the dealer's business;
4 j. Has relocated the dealer's place of business
5 without the manufacturer's, distributor's, or wholesaler's
6 consent; or
7 k. Has failed to comply with the terms of the
8 agreement.
9 (d) To resort to or use any false or misleading
10 advertisement in connection with the dealer's business as such
11 manufacturer, factory branch or division, distributor,
12 distributor branch or division, wholesaler, or wholesale
13 branch or division, or officer, agent, or other representative
14 thereof.
15 (e) To offer to sell or to sell any new outdoor power
16 equipment or item of such equipment, or parts or accessories
17 therefor, to any other dealer at a lower actual price therefor
18 than the actual price offered to any other dealer for the same
19 model outdoor power equipment identically equipped or to
20 utilize any device, including, but not limited to, sales
21 promotion plans or programs, which results in such lesser
22 actual price or results in a fixed price predetermined solely
23 by the manufacturer, distributor, or wholesaler. However, the
24 provisions of this paragraph do not apply to sales to a dealer
25 for resale to any unit or agency of the United States
26 Government, the state or any of its political subdivisions, or
27 any municipality located within this state. Further, the
28 provisions of this paragraph do not apply so long as a
29 manufacturer, distributor, or wholesaler, or any agent
30 thereof, sells or offers to sell such new outdoor power
31 equipment, parts, or accessories to all dealers of such
18
CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 1997 HB 801
59-316A-97
1 manufacturer's, distributor's, or wholesaler's dealers at an
2 equal price.
3 (f) To willfully discriminate, either directly or
4 indirectly, in price, programs, or terms of sale offered to
5 dealers, when the effect of such discrimination may be to
6 substantially lessen competition or to give to one holder of
7 an agreement any economic, business, or competitive advantage
8 not offered to all holders of the same or similar agreement.
9 (g) To prevent or attempt to prevent, by contract or
10 otherwise, any dealer from changing the capital structure of
11 the dealership or the means by or through which the dealer
12 finances the operation of the dealership, provided the dealer
13 at all times meets any reasonable capital standards agreed to
14 between the dealership and the manufacturer, distributor, or
15 wholesaler and provided such change by the dealer does not
16 result in a change in the executive management of the
17 dealership.
18 (h) To prevent or attempt to prevent, by contract or
19 otherwise, any dealer or any officer, member partner, or
20 stockholder of any dealer from selling or transferring any
21 part of the interest of any of them to any other person or
22 persons or party or parties. However, no dealer, officer,
23 partner, or stockholder has the right to sell, transfer, or
24 assign the agreement or power of management or control
25 thereunder without the written consent of the manufacturer,
26 distributor, or wholesaler, except that such consent may not
27 be unreasonably withheld.
28 (i) To obtain money, goods, services, anything of
29 value, or any other benefit from any other person with whom
30 the dealer does business or employs on account of or in
31 relation to the transactions between the dealer, the
19
CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 1997 HB 801
59-316A-97
1 manufacturer, distributor, or wholesaler, and such other
2 person.
3 (j) To require a dealer to assent to a release,
4 assignment, novation, waiver, or estoppel which would relieve
5 any person from liability imposed by ss. 686.601-686.614.
6 (4) It is deemed a violation of this section for a
7 dealer:
8 (a) To require a retail purchaser of new outdoor power
9 equipment or item of such equipment, as a condition of sale
10 and delivery of the item or equipment, also to purchase
11 special features, appliances, equipment, parts, or accessories
12 not desired or requested by the purchaser. However, this
13 prohibition does not apply to special features, appliances,
14 equipment, parts, or accessories which are already installed
15 when the outdoor power equipment or item of outdoor power
16 equipment is received by the dealer from the manufacturer,
17 distributor, or wholesaler of such equipment or item of such
18 equipment.
19 (b) To represent and sell as new and unused any
20 outdoor power equipment or item of such equipment which has
21 been used and operated for demonstration or other purposes
22 without stating to the purchaser prior to the sale the
23 approximate amount of use the outdoor power equipment or item
24 of such equipment has experienced or undergone.
25 (c) To resort to or use any false or misleading
26 advertisement in connection with the dealer's business as such
27 dealer.
28 686.612 Unenforceable contract or agreement.--Any
29 contract or servicing dealer agreement or part thereof or
30 practice thereunder which is in violation of any provision of
31
20
CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 1997 HB 801
59-316A-97
1 ss. 686.601-686.614 is deemed against public policy and is
2 void and unenforceable.
3 686.613 Remedies.--
4 (1) In addition to temporary, preliminary, or final
5 injunctive relief as provided in s. 686.611(3)(c)1., any
6 person who is aggrieved or injured in his business or property
7 by reason of anything forbidden in ss. 686.60-686.614 may
8 bring an action therefor in the appropriate circuit court of
9 this state and shall recover the actual damages sustained and
10 the costs of such action, including a reasonable attorney's
11 fee.
12 (2) Without regard and in addition to any other remedy
13 or relief to which a person is entitled, anyone aggrieved by a
14 violation of ss. 686.601-686.614 may bring an action to obtain
15 a declaratory judgment that an act, action, or practice
16 violates such sections and to enjoin a manufacturer,
17 distributor, wholesaler, or dealer who has violated, is
18 violating, or is otherwise likely to violate such sections.
19 (3) When such action is one of common or general
20 interest to many persons or when the parties are numerous and
21 it is impracticable to bring them all before the court, one or
22 more may bring a class action for the benefit of the whole,
23 including an action for injunctive relief.
24 (4) In an action for money damages, if a judge or jury
25 finds that the defendant acted maliciously, the judge or jury
26 may award punitive damages as permitted by state law.
27 (5) The Department of Legal Affairs or the state
28 attorney, if a violation of ss. 686.601-686.614 occurs in his
29 judicial circuit, may bring an action for injunctive or other
30 appropriate civil relief for any violation of ss.
31 686.601-686.614.
21
CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 1997 HB 801
59-316A-97
1 (6) The remedies provided in this section are in
2 addition to any other remedies provided by law or in equity.
3 686.614 Effect of act on other remedies.--Sections
4 686.601-686.614 are supplemental to and do not preempt local
5 ordinances dealing with prohibited or unlawful conduct in the
6 manufacturing, distribution, wholesaling, advertising, or sale
7 of outdoor power equipment and other items of outdoor power
8 equipment if such ordinances are not inconsistent with such
9 sections.
10 Section 2. This act shall take effect October 1, 1997.
11
12 *****************************************
13 HOUSE SUMMARY
14
Provides for regulation of sales and distribution of
15 outdoor power equipment and dealer relationships of such
equipment. See bill for details.
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
22