Senate Bill 1942

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    Florida Senate - 1999                                  SB 1942

    By Senator Kurth





    15-1315-99                                              See HB

  1                      A bill to be entitled

  2         An act relating to vessels; creating s.

  3         327.901, F.S.; creating the "Vessel Warranty

  4         Enforcement Act," also known as the "Vessel

  5         Lemon Law"; creating s. 327.902, F.S.;

  6         providing legislative intent; creating s.

  7         327.903, F.S.; providing definitions; creating

  8         s. 327.904, F.S.; providing for the duty of the

  9         manufacturer to conform the vessel to the

10         warranty; creating s. 327.905, F.S.; providing

11         for nonconformity of vessels and engines;

12         creating s. 327.906, F.S.; providing for

13         bad-faith claims; creating s. 327.907, F.S.;

14         providing for dispute settlement procedures;

15         creating s. 327.908, F.S.; providing for

16         dispute eligibility with the Florida New Vessel

17         Arbitration Board; creating s. 327.909, F.S.;

18         creating the Florida New Vessel Arbitration

19         Board; providing for duties and functions;

20         creating s. 327.911, F.S.; providing for

21         compliance and disciplinary actions; creating

22         s. 327.912, F.S.; providing that certain

23         violations are unfair or deceptive trade

24         practices; creating s. 327.913, F.S.; providing

25         for consumer remedies; creating s. 327.914,

26         F.S.; providing for vessel dealer liability;

27         creating s. 327.915, F.S.; providing for the

28         resale of returned vessels; creating s.

29         327.916, F.S.; providing that certain

30         agreements are void; creating s. 327.917, F.S.;

31         providing for preemption; creating s. 327.918,

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    Florida Senate - 1999                                  SB 1942
    15-1315-99                                              See HB




  1         F.S.; providing a fee; creating s. 327.919,

  2         F.S.; providing for rules; providing an

  3         effective date.

  4

  5  Be It Enacted by the Legislature of the State of Florida:

  6

  7         Section 1.  Section 327.901, Florida Statutes, is

  8  created to read:

  9         327.901  Short title.--Sections 327.901-327.919 shall

10  be known and may be cited as the "Vessel Warranty Enforcement

11  Act" or the "Vessel Lemon Law."

12         Section 2.  Section 327.902, Florida Statutes, is

13  created to read:

14         327.902  Legislative intent.--The Legislature

15  recognizes that a vessel is a major consumer purchase and that

16  a defective vessel undoubtedly creates a hardship for the

17  consumer.  The Legislature further recognizes that a vessel

18  dealer is an authorized service agent of the manufacturer.  It

19  is the intent of the Legislature that a good-faith vessel

20  warranty complaint by a consumer be resolved by the

21  manufacturer within a specified period of time.  It is further

22  the intent of the Legislature to provide the statutory

23  procedures whereby a consumer may receive a replacement

24  vessel, or a full refund, for a vessel that cannot be brought

25  into conformity with the warranty provided for in ss.

26  327.901-327.919.  However, nothing in ss. 327.901-327.919

27  shall in any way limit or expand the rights or remedies that

28  are otherwise available to a consumer under any other law. The

29  provisions of ss. 327.901-327.919 apply both to the vessel and

30  to the engine used to power the vessel, even if the

31  manufacturers of the vessel and the engine are different

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    Florida Senate - 1999                                  SB 1942
    15-1315-99                                              See HB




  1  entities. The provisions of ss. 327.901-327.919 do not apply

  2  to racing equipment or high-performance vessels and equipment.

  3         Section 3.  Section 327.903, Florida Statutes, is

  4  created to read:

  5         327.903  Definitions.--As used in ss. 327.901-327.919,

  6  the term:

  7         (1)  "Authorized service agent" means any person,

  8  including a vessel dealer, who is authorized by the

  9  manufacturer to service vessels.

10         (2)  "Board" means the Florida New Vessel Arbitration

11  Board.

12         (3)  "Collateral charges" means those additional

13  charges to a consumer wholly incurred as a result of the

14  acquisition of the vessel.  For the purposes of ss.

15  327.901-327.919, collateral charges include, but are not

16  limited to, manufacturer-installed or agent-installed items or

17  service charges, earned finance charges, sales taxes, and

18  title charges.

19         (4)  "Consumer" means the purchaser, other than for

20  purposes of resale, or the lessee, of a vessel primarily used

21  for personal or family purposes; any person to whom such

22  vessel is transferred for the same purposes during the

23  duration of the Vessel Lemon Law rights period; and any other

24  person entitled by the terms of the warranty to enforce the

25  obligations of the warranty.

26         (5)  "Days" means calendar days.

27         (6)  "Division" means the Division of Consumer Services

28  of the Department of Agriculture and Consumer Services.

29         (7)  "Incidental charges" means those reasonable costs

30  to the consumer which are directly caused by the nonconformity

31  of the vessel.

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    Florida Senate - 1999                                  SB 1942
    15-1315-99                                              See HB




  1         (8)  "Lessee" means any consumer who leases a vessel

  2  for 1 year or more pursuant to a written lease agreement that

  3  provides that the lessee is responsible for repairs to such

  4  vessel or any consumer who leases a vessel pursuant to a

  5  lease-purchase agreement.

  6         (9)  "Manufacturer" means a manufacturer, a

  7  distributor, or an importer.  A dealer shall not be deemed to

  8  be a manufacturer, distributor, or importer as provided in

  9  this section.

10         (10)  "Nonconformity" means a defect or condition that

11  substantially impairs the use, value, or safety of a vessel,

12  but does not include a defect or condition that results from

13  an accident, abuse, neglect, modification, or alteration of

14  the vessel by persons other than the manufacturer or its

15  authorized service agent.

16         (11)  "Procedure" means an informal dispute-settlement

17  procedure established by a manufacturer to mediate and

18  arbitrate vessel warranty disputes.

19         (12)  "Purchase price" means the cash price, inclusive

20  of any allowance for a trade-in vessel.

21         (13)  "Reasonable offset for use" means the number of

22  hours attributable to a consumer up to the date of the third

23  repair attempt of the same nonconformity or the 60th

24  cumulative day when the vessel is out of service by reason of

25  repair of one or more nonconformities, whichever occurs first,

26  multiplied by the purchase price of the vessel and divided by

27  120,000.

28         (14)  "Replacement vessel" means a vessel that is

29  identical or reasonably equivalent to the vessel to be

30  replaced, as the vessel to be replaced existed at the time of

31  acquisition.

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    Florida Senate - 1999                                  SB 1942
    15-1315-99                                              See HB




  1         (15)  "Vessel" means a new vessel, propelled by power

  2  other than muscular power, which is sold in this state to

  3  transport persons or property, and includes a vessel used as a

  4  demonstrator or leased vessel if a manufacturer's warranty was

  5  issued as a condition of sale or the lessee is responsible for

  6  repairs. The term "vessel" includes the engine that powers the

  7  vessel.

  8         (16)  "Vessel Lemon Law rights period" means the period

  9  ending 12 months after the date of the original delivery of a

10  vessel to a consumer.

11         (17)  "Warranty" means any written warranty issued by

12  the manufacturer, or any affirmation of fact or promise made

13  by the manufacturer, excluding statements made by the dealer,

14  in connection with the sale of a vessel to a consumer which

15  relates to the nature of the material or workmanship and

16  affirms or promises that such material or workmanship is free

17  of defects or will meet a specified level of performance.

18         Section 4.  Section 327.904, Florida Statutes, is

19  created to read:

20         327.904  Duty of manufacturer to conform a vessel to

21  the warranty.--

22         (1)(a)  If a vessel does not conform to the warranty

23  and the consumer first reports the problem to the manufacturer

24  or its authorized service agent during the first 12 months of

25  the Vessel Lemon Law rights period, the manufacturer or its

26  authorized service agent shall, at no cost to the consumer,

27  make such repairs as are necessary to conform the vessel to

28  the warranty, irrespective of whether such repairs are made

29  after the expiration of the Vessel Lemon Law rights period.

30         (b)  If a vessel does not conform to the warranty and

31  the consumer first reports the problem to the manufacturer or

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    Florida Senate - 1999                                  SB 1942
    15-1315-99                                              See HB




  1  its authorized service agent after the first 12 months of the

  2  Vessel Lemon Law rights period, the manufacturer or its

  3  authorized service agent shall make such repairs as are

  4  necessary to conform the vehicle to the warranty, irrespective

  5  of whether such repairs are made after the expiration of the

  6  Vessel Lemon Law rights period.  The manufacturer may charge

  7  for such repairs if the warranty so provides.

  8         (2)  Each manufacturer shall provide to its consumers

  9  conspicuous notice of the address and phone number for its

10  zone, district, or regional office for this state in the

11  written warranty or owner's manual.  By January 1 of each

12  year, each manufacturer shall forward to the Department of

13  Legal Affairs a copy of the owner's manual and any written

14  warranty for each make and model of vessel that it sells in

15  this state.

16         (3)  At the time of acquisition, the manufacturer shall

17  inform the consumer clearly and conspicuously in writing how

18  and where to file a claim with a certified procedure if such

19  procedure has been established by the manufacturer pursuant to

20  s. 327.907 and shall provide to the consumer a written

21  statement that explains the consumer's rights under ss.

22  327.901-327.919.  The written statement shall be prepared by

23  the Department of Legal Affairs and shall contain a toll-free

24  number for the division that the consumer can use to obtain

25  information regarding the consumer's rights and obligations

26  under this act or to commence arbitration.

27         (4)  A manufacturer, through its authorized service

28  agent, shall provide to the consumer, each time the consumer's

29  vessel is returned after being examined or repaired under the

30  warranty, a fully itemized, legible statement or repair order

31  indicating any test operation performed and the approximate

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    Florida Senate - 1999                                  SB 1942
    15-1315-99                                              See HB




  1  length of the operation, any diagnosis made, and all work

  2  performed on the vessel including, but not limited to, a

  3  general description of the problem reported by the consumer or

  4  an identification of the defect or condition, parts and labor,

  5  and the date when the vessel was submitted for examination or

  6  repair and the date when the repair or examination was

  7  completed.

  8         Section 5.  Section 327.905, Florida Statutes, is

  9  created to read:

10         327.905  Nonconformity of vessels.--

11         (1)(a)  After three attempts have been made to repair

12  the same nonconformity, the consumer shall give written

13  notification, by registered or express mail to the

14  manufacturer, of the need to repair the nonconformity to allow

15  the manufacturer a final attempt to cure the nonconformity.

16  The manufacturer shall have 10 days, commencing upon receipt

17  of such notification, to respond and give the consumer the

18  opportunity to have the vessel repaired at a reasonably

19  accessible repair facility within a reasonable time after the

20  consumer's receipt of the response.  The manufacturer shall

21  have 10 days, commencing upon the delivery of the vessel to

22  the designated repair facility by the consumer, to conform the

23  vessel to the warranty.  If the manufacturer fails to respond

24  to the consumer and give the consumer the opportunity to have

25  the vessel repaired at a reasonably accessible repair facility

26  or perform the repairs within the time periods prescribed in

27  this subsection, the requirement that the manufacturer be

28  given a final attempt to cure the nonconformity, or in

29  complete absence of a justiciable issue of either law or fact

30  raised by the consumer, does not apply.

31

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    Florida Senate - 1999                                  SB 1942
    15-1315-99                                              See HB




  1         (b)  If the vessel is out of service by reason of

  2  repair of one or more nonconformities by the manufacturer or

  3  its authorized service agent for a cumulative total of 45 or

  4  more days, exclusive of downtime for routine maintenance

  5  prescribed by the owner's manual, the consumer shall so notify

  6  the manufacturer in writing by registered or express mail to

  7  give the manufacturer or its authorized service agent an

  8  opportunity to inspect or repair the vessel.

  9         (2)(a)  If the manufacturer, or its authorized service

10  agent, cannot conform the vessel to the warranty by repairing

11  or correcting any nonconformity after a reasonable number of

12  attempts, the manufacturer, within 40 days, shall repurchase

13  the vessel and refund the full purchase price to the consumer,

14  less a reasonable offset for use, or, in consideration of its

15  receipt of payment from the consumer of a reasonable offset

16  for use, replace the vessel with a replacement vessel

17  acceptable to the consumer.  The refund or replacement must

18  include all reasonably incurred collateral and incidental

19  charges.  However, the consumer has an unconditional right to

20  choose a refund rather than a replacement.  Upon receipt of

21  such refund or replacement, the consumer, lienholder, or

22  lessor shall furnish to the manufacturer clear title to and

23  possession of the vessel.

24         (b)  Refunds shall be made to the consumer and

25  lienholder of record, if any, as their interests may appear.

26  If applicable, refunds shall be made to the lessor and lessee

27  as follows:  The lessee shall receive the lessee cost and the

28  lessor shall receive the lease price less the lessee cost.  A

29  penalty for early lease termination may not be assessed

30  against a lessee who receives a replacement vessel or refund

31  under ss. 327.901-327.919.  The Department of Revenue shall

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    Florida Senate - 1999                                  SB 1942
    15-1315-99                                              See HB




  1  refund to the manufacturer any sales tax that the manufacturer

  2  refunded to the consumer, lienholder, or lessor under this

  3  section, if the manufacturer provides to the department a

  4  written request for a refund and evidence that the sales tax

  5  was paid when the vessel was purchased and that the

  6  manufacturer refunded the sales tax to the consumer,

  7  lienholder, or lessor.

  8         (3)(a)  It is presumed that a reasonable number of

  9  attempts have been undertaken to conform a vessel to the

10  warranty if, during the Vessel Lemon Law rights period,

11  either:

12         1.  The same nonconformity has been subject to repair

13  at least three times by the manufacturer or its authorized

14  service agent, plus a final attempt by the manufacturer to

15  repair the vessel if undertaken as provided for in paragraph

16  (1)(a), and such nonconformity continues to exist; or

17         2.  The vessel has been out of service by reason of

18  repair of one or more nonconformities by the manufacturer, or

19  its authorized service agent, for a cumulative total of 45 or

20  more days, exclusive of downtime for routine maintenance

21  prescribed by the owner's manual.  The manufacturer or its

22  authorized service agent must have had at least one

23  opportunity to inspect or repair the vessel following receipt

24  of the notification as provided in paragraph (1)(b).  The

25  45-day period may be extended by any period of time during

26  which repair services are not available to the consumer

27  because of war, invasion, strike, fire, flood, or natural

28  disaster.

29         (b)  The terms of paragraph (a) may be extended for a

30  period of 6 months after the expiration of the Vessel Lemon

31  Law rights period if a nonconformity has been reported but has

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    Florida Senate - 1999                                  SB 1942
    15-1315-99                                              See HB




  1  not been cured by the manufacturer, or its authorized service

  2  agent, by the expiration of the Vessel Lemon Law rights

  3  period.

  4         (4)  It is an affirmative defense to any claim under

  5  ss. 327.901-327.919 that:

  6         (a)  The alleged nonconformity does not substantially

  7  impair the use, value, or safety of the vessel;

  8         (b)  The nonconformity is the result of an accident,

  9  abuse, neglect, or unauthorized modifications or alterations

10  of the vessel by persons other than the manufacturer or its

11  authorized service agent; or

12         (c)  The claim by the consumer was not filed in good

13  faith.

14

15  Any other affirmative defense allowed by law may be raised

16  against the claim.

17         Section 6.  Section 327.906, Florida Statutes, is

18  created to read:

19         327.906  Bad-faith claims.--Any claim by a consumer

20  which is found by the court to have been filed in bad faith or

21  solely for the purpose of harassment, or in complete absence

22  of a justiciable issue of either law or fact raised by the

23  consumer, shall result in the consumer being liable for all

24  costs and reasonable attorney's fees incurred by the

25  manufacturer, or its agent, as a direct result of the

26  bad-faith claim.

27         Section 7.  Section 327.907, Florida Statutes, is

28  created to read:

29         327.907  Dispute-settlement procedures.--

30         (1)  If a manufacturer has established a procedure

31  substantially in compliance with the provisions of ss.

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    Florida Senate - 1999                                  SB 1942
    15-1315-99                                              See HB




  1  327.901-327.919 and the rules adopted under this act, and has

  2  informed the consumer how and where to file a claim with such

  3  procedure pursuant to s. 327.904(3), the provisions of s.

  4  327.905(2) apply to the consumer only if the consumer has

  5  first resorted to such procedure. The decisionmakers for a

  6  certified procedure shall, in rendering decisions, take into

  7  account all legal and equitable factors germane to a fair and

  8  just decision, including, but not limited to, the warranty,

  9  the provisions of ss. 327.901-327.919, and any other equitable

10  considerations appropriate under the circumstances.

11  Decisionmakers and staff of a procedure shall be trained in

12  the provisions of ss. 327.901-327.919.  In an action brought

13  by a consumer concerning an alleged nonconformity, the

14  decision that results from a certified procedure is admissible

15  in evidence.

16         (2)  A manufacturer may apply to the division for

17  certification of its procedure. After receipt and evaluation

18  of the application, the division shall certify the procedure

19  or notify the manufacturer of any deficiencies in the

20  application or the procedure.

21         (3)  A certified procedure or a procedure of an

22  applicant seeking certification shall submit to the division a

23  copy of each settlement approved by the procedure or decision

24  made by a decisionmaker within 30 days after the settlement is

25  reached or the decision is rendered.  The decision or

26  settlement must contain at a minimum:

27         (a)  The name and address of the consumer.

28         (b)  The name of the manufacturer and address of the

29  dealership from which the vessel was purchased.

30         (c)  The date the claim was received and the location

31  of the procedure office that handled the claim.

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    Florida Senate - 1999                                  SB 1942
    15-1315-99                                              See HB




  1         (d)  The relief requested by the consumer.

  2         (e)  The name of each decisionmaker rendering the

  3  decision or person approving the settlement.

  4         (f)  The statement of the terms of the settlement or

  5  decision.

  6         (g)  The date of the settlement or decision.

  7         (h)  The statement of whether the decision was accepted

  8  or rejected by the consumer.

  9         (4)  Any manufacturer establishing or applying to

10  establish a certified procedure must file with the division a

11  copy of any information required for purposes of

12  certification, including the number of refunds and

13  replacements made in this state pursuant to the provisions of

14  ss. 327.901-327.919 by the manufacturer during the period

15  audited.

16         (5)  The division shall review each certified procedure

17  at least annually, prepare an annual report evaluating the

18  operation of certified procedures established by vessel

19  manufacturers and procedures of applicants seeking

20  certification, and, for a period not to exceed 1 year, shall

21  grant certification to, or renew certification for, those

22  manufacturers whose procedures substantially comply with the

23  provisions of ss. 327.901-327.919 and rules adopted under this

24  act.  If certification is revoked or denied, the division

25  shall state the reasons for such action.  The reports and

26  records of actions taken with respect to certification shall

27  be public records.

28         (6)  A manufacturer whose certification is denied or

29  revoked is entitled to a hearing pursuant to chapter 120.

30         (7)  The division shall adopt rules to implement this

31  section.

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    Florida Senate - 1999                                  SB 1942
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  1         Section 8.  Section 327.908, Florida Statutes, is

  2  created to read:

  3         327.908  Florida New Vessel Arbitration Board; dispute

  4  eligibility.--

  5         (1)  If a consumer files a claim with a certified

  6  procedure within 6 months after the expiration of the Vessel

  7  Lemon Law rights period and a decision is not rendered within

  8  40 days, the consumer may apply to the division to have the

  9  dispute removed to the board for arbitration.

10         (2)  A consumer who files a claim with a certified

11  procedure within 6 months after the expiration of the Vessel

12  Lemon Law rights period and is not satisfied with the decision

13  or the manufacturer's compliance therewith may apply to the

14  division to have the dispute submitted to the board for

15  arbitration.  A manufacturer may not seek review of a decision

16  made under its procedure.

17         (3)  If a manufacturer has no certified procedure or if

18  a certified procedure does not have jurisdiction to resolve

19  the dispute, a consumer may apply directly to the division to

20  have the dispute submitted to the board for arbitration.

21         (4)  A consumer must request arbitration before the

22  board within 6 months after the expiration of the Vessel Lemon

23  Law rights period, or within 30 days after the final action of

24  a certified procedure, whichever date occurs later.

25         (5)  The division shall screen all requests for

26  arbitration before the board to determine eligibility.  The

27  consumer's request for arbitration before the board shall be

28  made on a form prescribed by the Department of Legal Affairs.

29  The division shall forward to the board all disputes that the

30  division determines are potentially entitled to relief under

31  ss. 327.901-327.919.

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    15-1315-99                                              See HB




  1         (6)  The division may reject a dispute that it

  2  determines to be fraudulent or outside the scope of the

  3  board's authority. Any dispute deemed by the division to be

  4  ineligible for arbitration by the board due to insufficient

  5  evidence may be reconsidered upon the submission of new

  6  information regarding the dispute.  Following a second review,

  7  the division may reject a dispute if the evidence is clearly

  8  insufficient to qualify for relief.  Any dispute rejected by

  9  the division shall be forwarded to the Department of Legal

10  Affairs and a copy shall be sent by registered mail to the

11  consumer and the manufacturer, containing a brief explanation

12  as to the reason for rejection.

13         (7)  If the division rejects a dispute, the consumer

14  may file a lawsuit to enforce the remedies provided under ss.

15  327.901-327.919.  In any civil action arising under this act

16  and relating to a matter considered by the division, any

17  determination made to reject a dispute is admissible in

18  evidence.

19         Section 9.  Section 327.909, Florida Statutes, is

20  created to read:

21         327.909  Florida New Vessel Arbitration Board; creation

22  and function.--

23         (1)  There is established within the Department of

24  Legal Affairs, the Florida New Vessel Arbitration Board,

25  consisting of members appointed by the Attorney General for an

26  initial term of 1 year. Board members may be reappointed for

27  additional terms of 2 years. Each board member is accountable

28  to the Attorney General for the performance of the member's

29  duties and is exempt from civil liability for any act or

30  omission that occurs while acting in the member's official

31  capacity.  The Department of Legal Affairs shall defend a

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  1  member in any action against the member or the board which

  2  arises from any such act or omission.  The Attorney General

  3  may establish as many boards as necessary to carry out the

  4  provisions of ss. 327.901-327.919.

  5         (2)  The boards shall hear cases in various locations

  6  throughout the state so any consumer whose dispute is approved

  7  for arbitration by the division may attend an arbitration

  8  hearing at a reasonably convenient location and present a

  9  dispute orally. Arbitration proceedings under this section

10  shall be open to the public on reasonable and

11  nondiscriminatory terms.

12         (3)  Each board shall consist of six members.  The

13  Attorney General may appoint two additional members to each

14  board if necessary.  The members of the board shall construe

15  and apply the provisions of ss. 327.901-327.919, and rules

16  adopted thereunder, in making their decisions.  An

17  administrator and a secretary shall be assigned to each board

18  by the Department of Legal Affairs.  At least one member of

19  each board must be a person with expertise in vessel

20  mechanics.  A member must not be employed by a vessel

21  manufacturer or dealer or be a staff member, a decisionmaker,

22  or a consultant for a procedure.  Board members shall be

23  trained in the application of ss. 327.901-327.919 and any

24  rules adopted under this act, shall be reimbursed for travel

25  expenses pursuant to s. 112.061, and shall be compensated at a

26  rate or wage prescribed by the Attorney General.

27         (4)  Before filing a civil action on a matter subject

28  to s. 327.905, the consumer must first submit the dispute to

29  the division, and to the board if such dispute is deemed

30  eligible for arbitration.

31

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    15-1315-99                                              See HB




  1         (5)  Manufacturers shall submit to arbitration

  2  conducted by the board if such arbitration is requested by a

  3  consumer and the dispute is deemed eligible for arbitration by

  4  the division pursuant to s. 327.908.

  5         (6)  The Department of Legal Affairs, at the board's

  6  request, may investigate disputes; subpoena records,

  7  documents, and other evidence; and compel the attendance of

  8  witnesses before the board.

  9         (7)  At all arbitration proceedings, the parties may

10  present oral and written testimony, present witnesses and

11  evidence relevant to the dispute, cross-examine witnesses, and

12  be represented by counsel.  The board may administer oaths or

13  affirmations to witnesses and inspect the vehicle if requested

14  by a party or if the board deems such inspection appropriate.

15         (8)  The board shall grant relief if a reasonable

16  number of attempts have been undertaken to correct a

17  nonconformity or nonconformities.

18         (9)  The board shall hear the dispute within 40 days

19  and render a decision within 60 days after the date the

20  request for arbitration is approved.  If the board determines

21  that additional information is necessary, it may continue the

22  arbitration proceeding on a subsequent date.  The decision of

23  the board shall be sent by registered mail to the consumer and

24  the manufacturer, and shall contain written findings of fact

25  and rationale for the decision.  If the decision is in favor

26  of the consumer, the manufacturer must, within 40 days after

27  receipt of the decision, comply with the terms of the

28  decision.  Compliance occurs on the date the consumer receives

29  delivery of an acceptable replacement vessel or the refund

30  specified in the arbitration award.  In any civil action

31  arising under ss. 327.901-327.919 and relating to a dispute

                                  16

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    Florida Senate - 1999                                  SB 1942
    15-1315-99                                              See HB




  1  arbitrated before the board, any decision by the board is

  2  admissible in evidence.  The failure of the board to hear a

  3  dispute or render a decision within the prescribed periods

  4  does not invalidate the decision.

  5         (10)  A decision is final unless appealed by either

  6  party.  A petition to the circuit court to appeal a decision

  7  must be made within 30 days after receipt of the decision.

  8  Within 7 days after the petition has been filed, the appealing

  9  party must send a copy of the petition to the Department of

10  Legal Affairs. If the department does not receive notice of

11  such petition within 40 days after the manufacturer's receipt

12  of a decision in favor of the consumer, and the manufacturer

13  has neither complied with, nor has petitioned to appeal such

14  decision, the Department of Legal Affairs may apply to the

15  circuit court to seek imposition of a fine up to $1,000 per

16  day against the manufacturer until the amount stands at twice

17  the purchase price of the vessel, unless the manufacturer

18  provides clear and convincing evidence that the delay or

19  failure was beyond its control or was acceptable to the

20  consumer as evidenced by a written statement signed by the

21  consumer.  If the manufacturer fails to provide such evidence

22  or fails to pay the fine, the Department of Legal Affairs

23  shall initiate proceedings against the manufacturer for

24  failure to pay such fine.  The proceeds from the fine herein

25  imposed shall be placed in the General Revenue Fund for

26  implementation and enforcement of ss. 327.901-327.919.  If the

27  manufacturer fails to comply with the provisions of this

28  subsection, the court shall affirm the award upon application

29  by the consumer.

30         (11)  All provisions in this section pertaining to

31  compulsory arbitration before the board, the proceedings and

                                  17

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    Florida Senate - 1999                                  SB 1942
    15-1315-99                                              See HB




  1  decisions of the board, and any appeals thereof, are exempt

  2  from the provisions of chapter 120.

  3         (12)  An appeal of a decision by the board to the

  4  circuit court by a consumer or a manufacturer shall be by

  5  trial de novo. In a written petition to appeal a decision by

  6  the board, the appealing party must state the action requested

  7  and the grounds relied upon for appeal.

  8         (13)  If a decision of the board in favor of the

  9  consumer is upheld by the court, recovery by the consumer

10  shall include the pecuniary value of the award, attorney's

11  fees incurred in obtaining confirmation of the award, and all

12  costs and continuing damages in the amount of $25 per day for

13  each day beyond the 40-day period following the manufacturer's

14  receipt of the board's decision.  If a court determines that

15  the manufacturer brought the appeal solely for the purpose of

16  harassment or in complete absence of a justiciable issue of

17  law or fact, the court may double the amount of the total

18  award.

19         (14)  When a judgment affirms a decision by the board

20  in favor of a consumer, appellate review may be conditioned

21  upon payment by the manufacturer of the consumer's attorney's

22  fees and giving security for costs and expenses resulting from

23  the review period.

24         (15)  The Department of Legal Affairs shall maintain

25  records of each dispute submitted to the board, including an

26  index of vessels by year, make, and model, and shall compile

27  aggregate annual statistics for all disputes submitted to, and

28  decided by, the board, as well as annual statistics for each

29  manufacturer which include, but are not limited to, the value,

30  if applicable, and the number and percent of:

31         (a)  Replacement vessel requests;

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    Florida Senate - 1999                                  SB 1942
    15-1315-99                                              See HB




  1         (b)  Purchase price refund requests;

  2         (c)  Replacement vessels obtained in prehearing

  3  settlements;

  4         (d)  Purchase price refunds obtained in prehearing

  5  settlements;

  6         (e)  Replacement vessels awarded in arbitration;

  7         (f)  Purchase price refunds awarded in arbitration;

  8         (g)  Board decisions neither complied with in 40 days

  9  nor petitioned for appeal within 30 days;

10         (h)  Board decisions appealed;

11         (i)  Appeals affirmed by the court; and

12         (j)  Appeals found by the court to be brought in bad

13  faith or solely for the purpose of harassment.

14

15  The statistics compiled under this subsection are public

16  information.

17         (16)  When requested by the Department of Legal

18  Affairs, a manufacturer must verify the settlement terms for

19  disputes that are approved for arbitration but are not decided

20  by the board.

21         Section 10.  Section 327.911, Florida Statutes, is

22  created to read:

23         327.911  Compliance and disciplinary actions.--The

24  Department of Legal Affairs may enforce and ensure compliance

25  with the provisions of ss. 327.901-327.919 and rules adopted

26  thereunder, may issue subpoenas requiring the attendance of

27  witnesses and production of evidence, and may seek relief in

28  the circuit court to compel compliance with such subpoenas.

29  The Department of Legal Affairs may impose a civil penalty

30  against a manufacturer not to exceed $1,000 for each count or

31  separate offense.  The proceeds from the fine imposed herein

                                  19

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    Florida Senate - 1999                                  SB 1942
    15-1315-99                                              See HB




  1  shall be placed in the General Revenue Fund, for

  2  implementation and enforcement of ss. 327.901-327.919.

  3         Section 11.  Section 327.912, Florida Statutes, is

  4  created to read:

  5         327.912  Unfair or deceptive trade practice.--A

  6  violation of ss. 327.901-327.919 by a manufacturer is an

  7  unfair or deceptive trade practice as defined in part II of

  8  chapter 501.

  9         Section 12.  Section 327.913, Florida Statutes, is

10  created to read:

11         327.913  Consumer remedies.--

12         (1)  A consumer may file an action to recover damages

13  caused by a violation of ss. 327.901-327.919.  The court shall

14  award a consumer who prevails in such action the amount of any

15  pecuniary loss, litigation costs, reasonable attorney's fees,

16  and appropriate equitable relief.

17         (2)  An action brought under ss. 327.901-327.919 must

18  be commenced within 1 year after the expiration of the Vessel

19  Lemon Law rights period, or, if a consumer resorts to an

20  informal dispute-settlement procedure or submits a dispute to

21  the division or board, within 1 year after the final action of

22  the procedure, division, or board.

23         (3)  Sections 327.901-327.919 do not prohibit a

24  consumer from pursuing other rights or remedies under any

25  other law.

26         Section 13.  Section 327.914, Florida Statutes, is

27  created to read:

28         327.914  Vessel dealer liability.--Nothing in ss.

29  327.901-327.919 imposes any liability on a dealer or creates a

30  cause of action by a consumer against a dealer, except for

31  written express warranties made by the dealer apart from the

                                  20

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    Florida Senate - 1999                                  SB 1942
    15-1315-99                                              See HB




  1  manufacturer's warranties.  A dealer may not be made a party

  2  defendant in any action involving or relating to ss.

  3  327.901-327.919, except as provided in this section.  The

  4  manufacturer shall not charge back or require reimbursement by

  5  the dealer for any costs, including, but not limited to, any

  6  refunds or vessel replacements, incurred by the manufacturer

  7  arising out of ss. 327.901-327.919, in the absence of evidence

  8  that the related repairs had been carried out by the dealer in

  9  a manner substantially inconsistent with the manufacturer's

10  published instructions.

11         Section 14.  Section 327.915, Florida Statutes, is

12  created to read:

13         327.915  Resale of returned vessels.--

14         (1)  A manufacturer who accepts the return of a vessel

15  by reason of a settlement, determination, or decision pursuant

16  to this chapter shall notify the Department of Legal Affairs

17  and report the vessel identification number of that vessel

18  within 10 days after such acceptance.

19         (2)  A person shall not knowingly lease, sell at

20  wholesale or retail, or transfer a title to a vessel returned

21  by reason of a settlement, determination, or decision pursuant

22  to ss. 327.901-327.919 or similar statute of another state

23  unless the nature of the nonconformity is clearly and

24  conspicuously disclosed to the prospective transferee, lessee,

25  or buyer, and the manufacturer warrants to correct such

26  nonconformity for a term of 1 year.  The Department of Legal

27  Affairs shall prescribe by rule the form, content, and

28  procedure pertaining to such disclosure statement.

29         (3)  As used in this section, the term "settlement"

30  means an agreement entered into between a manufacturer and

31

                                  21

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    Florida Senate - 1999                                  SB 1942
    15-1315-99                                              See HB




  1  consumer that occurs after a dispute is submitted to a

  2  procedure or is approved for arbitration before the board.

  3         Section 15.  Section 327.916, Florida Statutes, is

  4  created to read:

  5         327.916  Certain agreements void.--Any agreement

  6  entered into by a consumer that waives, limits, or disclaims

  7  the rights set forth in ss. 327.901-327.919 is void as

  8  contrary to public policy.  The rights set forth in ss.

  9  327.901-327.919 shall extend to a subsequent transferee of

10  such vessel.

11         Section 16.  Section 327.917, Florida Statutes, is

12  created to read:

13         327.917  Preemption.--Sections 327.901-327.919 preempt

14  any similar county or municipal ordinance regarding consumer

15  warranty rights resulting from the acquisition of a vessel in

16  this state.

17         Section 17.  Section 327.918, Florida Statutes, is

18  created to read:

19         327.918  Fee.--

20         (1)  A $2 fee shall be collected by a vessel dealer, or

21  by a person engaged in the business of leasing vessels, from

22  the consumer at the consummation of the sale of a vessel or at

23  the time of entry into a lease agreement for a vessel.  Such

24  fees shall be remitted to the county tax collector or private

25  agency acting as agent for the Department of Revenue.  All

26  fees, less the cost of administration, shall be transferred

27  monthly to the Department of Legal Affairs for deposit into

28  the General Revenue Fund.  The Department of Legal Affairs

29  shall distribute monthly an amount not exceeding one-fourth of

30  the fees received to the Division of Consumer Services of the

31  Department of Agriculture and Consumer Services to carry out

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    Florida Senate - 1999                                  SB 1942
    15-1315-99                                              See HB




  1  the provisions of ss. 327.907 and 327.908.  The Department of

  2  Legal Affairs shall contract with the Division of Consumer

  3  Services for payment of services performed by the division

  4  pursuant to ss. 327.907 and 327.908.

  5         (2)  The Department of Revenue shall administer,

  6  collect, and enforce the fee authorized under this section

  7  pursuant to the provisions of chapter 212.  The fee shall not

  8  be included in the computation of estimated taxes pursuant to

  9  s. 212.11(1)(a), nor shall the dealer's credit provided under

10  s. 212.12 apply to the fee.  The provisions of chapter 212

11  regarding the authority to audit and make assessments, the

12  keeping of books and records, and interest and penalties on

13  delinquent fees apply to the fee imposed by this section.

14         Section 18.  Section 327.919, Florida Statutes, is

15  created to read:

16         327.919  Rulemaking authority.--The Department of Legal

17  Affairs shall adopt rules to implement ss. 327.901-327.919.

18         Section 19.  This act shall take effect October 1,

19  1999.

20

21            *****************************************

22                       LEGISLATIVE SUMMARY

23
      Creates the "Vessel Warranty Enforcement Act," which is
24    also known as the "Vessel Lemon Law," to provide for the
      protection of the purchasers of new vessels in the same
25    manner as is currently provided for purchasers of motor
      vehicles. Includes protection with respect to the vessel
26    and the engine used to power the vessel. (See bill for
      details.)
27

28

29

30

31

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