Senate Bill 1916e1

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    CS for SB 1916                           First Engrossed (ntc)



  1                      A bill to be entitled

  2         An act relating to motor vehicle dealers;

  3         amending s. 320.61, F.S.; prohibiting the

  4         granting of a replacement application until the

  5         exhaustion of appellate remedies with respect

  6         to certain complaints against licensees;

  7         amending s. 320.64, F.S.; providing grounds for

  8         denying, suspending, or revoking a license;

  9         requiring the maintenance of certain records;

10         amending s. 320.641, F.S.; revising provisions

11         relating to the unfair cancellation of

12         franchise agreements; providing clarification

13         regarding when a complaint may be filed;

14         establishing a burden of proof standard;

15         providing standards for determining when an

16         agreement is unfair; amending s. 320.643, F.S.;

17         prohibiting certain rights of first refusal;

18         amending s. 320.645, F.S.; restricting the

19         ownership of dealerships by licensees;

20         prohibiting licensees from receiving a motor

21         vehicle dealer's license; defining terms;

22         providing exceptions; amending s. 320.695,

23         F.S.; providing additional grounds for issuing

24         injunctions; providing an effective date.

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

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28         Section 1.  Subsection (4) of section 320.61, Florida

29  Statutes, is amended to read:

30         320.61  Licenses required of motor vehicle

31  manufacturers, distributors, importers, etc.--


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    CS for SB 1916                           First Engrossed (ntc)



  1         (4)  When a complaint of unfair cancellation of a

  2  dealer agreement is made by a motor vehicle dealer against a

  3  licensee and is in the process of being heard pursuant to ss.

  4  320.60-320.70 by the department, a no replacement application

  5  for such agreement may not shall be granted until a final

  6  decision is rendered by the department on the complaint and

  7  all appellate remedies have been exhausted by the licensee or

  8  motor vehicle dealer of unfair cancellation.

  9         Section 2.  Subsections (13) and (20) of section

10  320.64, Florida Statutes, are amended and subsections (24) and

11  (25) are added to that section to read:

12         320.64  Denial, suspension, or revocation of license;

13  grounds.--A license may be denied, suspended, or revoked

14  within the entire state or at any specific location or

15  locations within the state at which the applicant or licensee

16  engages or proposes to engage in business, upon proof that an

17  applicant or licensee has failed to comply with any of the

18  following provisions with sufficient frequency so as to

19  establish a pattern of wrongdoing on the part of the

20  applicant:

21         (13)  The applicant or licensee has refused to deliver,

22  in reasonable quantities and within a reasonable time, to any

23  duly licensed motor vehicle dealer who has an agreement with

24  such applicant or licensee for the retail sale of new motor

25  vehicles and parts for motor vehicles sold or distributed by

26  the applicant or licensee, any such motor vehicles or parts as

27  are covered by such agreement specifically publicly advertised

28  by such applicant or licensee to be available for immediate

29  delivery. Such refusal includes the failure to offer to its

30  same line-make franchised motor vehicle dealers all models

31  manufactured for that line-make, or requiring a dealer to pay


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    CS for SB 1916                           First Engrossed (ntc)



  1  any extra fee, purchase unreasonable advertising displays or

  2  other materials, or remodel, renovate, or recondition the

  3  dealer's existing facilities, or provide exclusive facilities

  4  as a prerequisite to receiving a model or series of vehicles.

  5  However, the failure to deliver any motor vehicle or part will

  6  not be considered a violation of this section if the failure

  7  is due to act of God, work stoppage, or delay due to a strike

  8  or labor difficulty, a freight embargo, product shortage, or

  9  other cause over which the applicant or licensee has no

10  control. The failure to deliver parts or components for the

11  current and 5 preceding years' models within 60 days from date

12  of order shall be deemed prima facie unreasonable.

13         (20)  The applicant or licensee has established a

14  system of motor vehicle allocation or distribution or has

15  implemented a system of allocation or distribution of motor

16  vehicles to one or more of its franchised motor vehicle

17  dealers which is unfair, inequitable, unreasonably

18  discriminatory, or not supportable by reason and good cause

19  after considering the equities of the affected motor vehicles

20  dealer or dealers.

21         (a)  A licensee must maintain for 3 years records that

22  fully describe the method of allocation or distribution of

23  motor vehicles and records of the actual allocation or

24  distribution of mother vehicles which directly or indirectly

25  affect the allocation or distribution of motor vehicles to

26  motor vehicle dealers located within this state.

27         (b)  The records must be made available at no cost to a

28  motor vehicle dealer who has a franchise agreement with the

29  licensee and who has filed a complaint, pertinent to the

30  allocation or distribution of motor vehicles, with the

31  department within 30 days after the date requested.


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    CS for SB 1916                           First Engrossed (ntc)



  1         (24)  The applicant or licensee has conducted, or

  2  attempted to conduct, an audit of a motor vehicle dealer for a

  3  period in excess of 12 months prior to the date of the audit

  4  with respect to a new vehicle or service warranty audit or to

  5  a rebate or dealer incentive audit or has threatened to

  6  conduct an audit in an attempt to coerce a motor vehicle

  7  dealer to forego any rights granted under ss. 320.60-320.70.

  8  These time limitations do not apply in the case of fraud that

  9  has been proven in a court of competent jurisdiction.

10         (25)  The applicant or licensee has offered any

11  refunds, incentives, or other inducements to any person to

12  purchase new motor vehicles of a certain line-make to be sold

13  to the state or any political subdivision thereof or to any

14  other person without making the same offer to all motor

15  vehicle dealers in the state with the same line-make. Nothing

16  in this subsection prohibits a licensee from offering uniform

17  discounts, rebates, or incentives to all of its motor vehicle

18  dealers or from implementing reasonable regional marketing

19  programs. A regional marketing program is reasonable only if

20  it provides equal and measurable ability, based on credible

21  criteria, for all of the licensee's line-make dealers in the

22  state to qualify for participation. In instances of sales to a

23  commercial fleet account or motor vehicle leasing entity, any

24  subsidy, discount, incentive, or other inducement must be

25  uniformly available to all of the licensee's line-make motor

26  vehicle dealers in this state.

27         Section 3.  Subsection (3) of section 320.641, Florida

28  Statutes, is amended to read:

29         320.641  Unfair cancellation of franchise agreements.--

30         (3)  Any motor vehicle dealer who receives a notice

31  from the licensee of its intent to discontinue, cancel, not


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    CS for SB 1916                           First Engrossed (ntc)



  1  renew, modify, or replace the dealer's franchise agreement

  2  whose franchise agreement is discontinued, canceled, not

  3  renewed, modified, or replaced may, within the 90-day notice

  4  period, file a petition or complaint for a determination of

  5  whether such action is an unfair or prohibited

  6  discontinuation, cancellation, nonrenewal, modification, or

  7  replacement. In such action, the licensee has the burden of

  8  proving that the action is fair and not prohibited. Agreements

  9  and certificates of appointment shall continue in effect until

10  final determination of the issues raised in such petition or

11  complaint by the motor vehicle dealer, including the

12  exhaustion of all appellate remedies by the licensee or motor

13  vehicle dealer.  A discontinuation, cancellation, or

14  nonrenewal of a franchise agreement is unfair if it is not

15  clearly permitted by the franchise agreement; is not

16  undertaken in good faith; is not undertaken for good cause; or

17  is based on an alleged breach of the franchise agreement which

18  is not in fact a material and substantial breach. A

19  modification or replacement of a franchise agreement is unfair

20  if it is not clearly permitted by the franchise agreement; is

21  not undertaken in good faith; or is not undertaken for good

22  cause. The termination or threat of termination of a motor

23  vehicle dealer's franchise agreement, or any adverse action

24  against a dealer based in whole or in part on the failure of

25  the dealer to meet the performance goals of the manufacturer

26  when that failure is due to the failure of the franchisor to

27  supply, within a reasonable period of time, new motor vehicles

28  ordered by or allocated to the dealer, is unfair. As used in

29  this subsection, the term "good faith" means that the

30  provisions or standards relied upon by the licensee to

31  establish grounds for termination are reasonable and have been


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    CS for SB 1916                           First Engrossed (ntc)



  1  applied by the licensee in a uniform, consistent, and

  2  nondiscriminatory manner, considering action taken by the

  3  licensee when similar conduct was committed by other motor

  4  vehicle dealers; and the term "good cause" means a material

  5  and substantial breach of the franchise agreement which is

  6  significantly detrimental to the licensee's business interest.

  7         Section 4.  Subsection (3) is added to section 320.643,

  8  Florida Statutes, to read:

  9         320.643  Transfer, assignment, or sale of franchise

10  agreements.--

11         (3)  Notwithstanding the terms of a franchise

12  agreement, a licensee does not have and may not exercise a

13  right of first refusal with respect to any proposed transfer

14  of ownership governed by ss. 320.60-320.70. Any such right of

15  first refusal in a franchise agreement is void.

16         Section 5.  Section 320.645, Florida Statutes, is

17  amended to read:

18         320.645  Restriction upon ownership of dealership by

19  licensee.--

20         (1)  A No licensee, including a manufacturer or agent

21  of a manufacturer, or any parent, subsidiary, common entity,

22  or officer or representative of the licensee may not shall own

23  any interest in, control, or operate, either directly or

24  indirectly, a motor vehicle dealership in this state for the

25  sale or service of motor vehicles that which have been or are

26  offered for sale under a franchise agreement with a motor

27  vehicle dealer in this state. A licensee may not be issued a

28  motor vehicle dealer license pursuant to s. 320.27. However, a

29  no such licensee will not be deemed to be in violation of this

30  section:

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    CS for SB 1916                           First Engrossed (ntc)



  1         (a)  When operating a motor vehicle dealership for a

  2  temporary period, not to exceed 1 year, during the transition

  3  from one owner of the motor vehicle dealership to another;

  4         (b)  When operating a motor vehicle dealership

  5  temporarily for the exclusive purpose of broadening the

  6  diversity of its dealer body and enhancing opportunities for

  7  qualified persons who are part of a group that has

  8  historically been underrepresented in its dealer body, or for

  9  other qualified persons who lack the resources to purchase or

10  capitalize a dealership outright, for a reasonable period, not

11  to exceed 1 year, or in a bona fide relationship with an

12  independent person, other than a licensee or its agent or

13  affiliate, who has made a significant investment that is

14  subject to loss in the dealership and who can reasonably

15  expect to acquire full ownership of the dealership on

16  reasonable terms and conditions; or

17         (c)  If the department determines, after a hearing on

18  the matter, pursuant to chapter 120, at the request of any

19  person, that there is no independent person available in the

20  community or territory to own and operate the motor vehicle

21  dealership in a manner consistent with the public interest.

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23  In any such case in which paragraph (a) or paragraph (c)

24  applies, the licensee must continue to make the motor vehicle

25  dealership available for sale to an independent person at a

26  fair and reasonable price. Approval of the sale of such a

27  motor vehicle dealership to a proposed motor vehicle dealer

28  must shall not be unreasonably withheld. The licensee must

29  certify, in writing, to the department that the provisions of

30  paragraph (b) have been satisfied for the purpose of complying

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    CS for SB 1916                           First Engrossed (ntc)



  1  with this section and that the relationship is not an attempt

  2  to own, operate, or control one or more dealerships.

  3         (2)  As used in the section, the term:

  4         (a)  "Agent" means a person who is employed by or

  5  affiliated with a licensee or who directly or through an

  6  intermediary is controlled by or under common control of a

  7  licensee.

  8         (b)  "Control" means the direct or indirect possession

  9  of the power to direct or cause the direction of the

10  management or policies of a person, whether through the

11  ownership of voting securities, by contract, or otherwise.

12         (c)  "Independent person" means a person who is not an

13  officer, director, or employee of the licensee or otherwise

14  associated with the licensee through agreements or

15  understanding, other than the franchise agreement.

16         (d)  "Reasonable terms and conditions" requires that

17  profits from dealership operation will be sufficient to allow

18  full ownership of the dealership by the independent person

19  within a reasonable time period not to exceed 10 years, absent

20  exceptional circumstances demonstrated by the independent

21  person or the licensee; that the independent person has

22  sufficient control to permit acquisition of ownership; and

23  that the relationship cannot be terminated to avoid full

24  ownership. The terms and conditions are not reasonable if they

25  preclude the independent person from an expedited purchase of

26  the dealership using a monetary source other than profits from

27  dealership operation.

28         (e)  "Significant investment" means a reasonable

29  amount, considering the fair market value of the dealership,

30  acquired and obtained from sources other than the licensee or

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    CS for SB 1916                           First Engrossed (ntc)



  1  any of its affiliates and not encumbered by the person's

  2  interest in the dealership.

  3         (3)(2)  This section does not apply to any dealership

  4  that is owned, controlled, or operated by a licensee on July

  5  1, 2000. This section shall not be construed to prohibit any

  6  licensee from owning or operating a motor vehicle dealership

  7  in this state if such dealership was owned or operated by the

  8  licensee on May 31, 1984.

  9         Section 6.  Section 320.695, Florida Statutes, is

10  amended to read:

11         320.695  Injunction.--In addition to the remedies

12  provided in this chapter, and notwithstanding the existence of

13  any adequate remedy at law, the department, or any motor

14  vehicle dealer, association of motor vehicle dealers,

15  licensee, or association of licensees in the name of the

16  department and state and for the use and benefit of a the

17  motor vehicle dealer or licensee, may apply is authorized to

18  make application to any circuit court of the state for the

19  grant, upon a hearing and for cause shown, of a temporary or

20  permanent injunction, or both, restraining any person from

21  acting as a licensee under the terms of ss. 320.60-320.70

22  without being properly licensed hereunder, or from violating

23  or continuing to violate any of the provisions of ss.

24  320.60-320.70, or from failing or refusing to comply with the

25  requirements of this law or any rule or regulation adopted

26  hereunder.  Such injunction shall be issued without bond.  A

27  single act in violation of the provisions of ss. 320.60-320.70

28  shall be sufficient to authorize the issuance of an

29  injunction.  However, this statutory remedy shall not be

30  applicable to any motor vehicle dealer after final

31  determination by the department under s. 320.641(3).


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    CS for SB 1916                           First Engrossed (ntc)



  1         Section 7.  This act shall take effect July 1, 2000.

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