Senate Bill 2508
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    Florida Senate - 2000                                  SB 2508
    By Senator Diaz-Balart
    37-1273-00
  1                      A bill to be entitled
  2         An act relating to motor vehicle dealers;
  3         amending s. 320.60, F.S.; revising certain
  4         definitions; amending s. 320.61, F.S.;
  5         prohibiting the granting of a replacement
  6         application during the pendency of certain
  7         actions alleging the unfair cancellation of a
  8         dealer franchise agreement; amending s. 320.64,
  9         F.S.; providing additional grounds for the
10         denial, suspension, or revocation of a license;
11         providing for the maintenance and disclosure of
12         certain records; amending s. 320.641, F.S.;
13         revising provisions relating to the unfair
14         cancellation of franchise agreements; adding
15         additional acts that constitute such actions;
16         providing procedural standards during such
17         action; amending s. 320.642, F.S.; establishing
18         certain geographic comparison area standards
19         for use in determining whether dealers are
20         providing adequate representation; amending s.
21         320.643, F.S.; prohibiting licensees from
22         having a right of first refusal regarding
23         franchise agreements; amending s. 320.645,
24         F.S.; providing for a licensee to operate a
25         dealership under special conditions; amending
26         s. 320.695, F.S.; providing additional grounds
27         for injunctive relief by any person; providing
28         an effective date.
29
30  Be It Enacted by the Legislature of the State of Florida:
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  1         Section 1.  Paragraph (a) of subsection (11) of section
  2  320.60, Florida Statutes, is amended, subsections (13) and
  3  (14) of that section are redesignated as subsections (14) and
  4  (15) respectively, and a new subsection (13) is added to that
  5  section, to read:
  6         320.60  Definitions for ss. 320.61-320.70.--Whenever
  7  used in ss. 320.61-320.70, unless the context otherwise
  8  requires, the following words and terms have the following
  9  meanings:
10         (11)(a)  "Motor vehicle dealer" means any person, firm,
11  or corporation who is licensed as a franchise motor vehicle
12  dealer and, for commission, money, or other things of value,
13  repairs or services motor vehicles or used motor vehicles
14  pursuant to an agreement as defined in subsection (1), or
15  sells, exchanges, buys, or rents, or offers, or attempts to
16  negotiate a sale or exchange of any interest in, motor
17  vehicles, including retail lease transactions for a period of
18  more than 12 months, or who is engaged wholly or in part in
19  the business of selling motor vehicles, whether or not such
20  motor vehicles are owned by such person, firm, or corporation.
21         (13)  "Sell" means a transaction in which the title is
22  transferred to the purchaser, or a retail lease transaction in
23  which a lessee leases a vehicle for a period of more than 12
24  months.
25         Section 2.  Subsection (4) of section 320.61, Florida
26  Statutes, is amended to read:
27         320.61  Licenses required of motor vehicle
28  manufacturers, distributors, importers, etc.--
29         (4)  When a complaint of unfair cancellation of a
30  dealer agreement is made by a motor vehicle dealer against a
31  licensee and is in the process of being heard pursuant to ss.
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  1  320.60-320.70 by the department, a no replacement application
  2  for such agreement may not shall be granted until a final
  3  decision is rendered by the department on the complaint of
  4  unfair cancellation, including the exhaustion of all appellate
  5  remedies by either party.
  6         Section 3.  Subsections (13) and (20) of section
  7  320.64, Florida Statutes, are amended, and subsections (24),
  8  (25), (26), (27), (28), (29), (30), (31), (32), and (33) are
  9  added to that section, to read:
10         320.64  Denial, suspension, or revocation of license;
11  grounds.--A license may be denied, suspended, or revoked
12  within the entire state or at any specific location or
13  locations within the state at which the applicant or licensee
14  engages or proposes to engage in business, upon proof that an
15  applicant or licensee has failed to comply with any of the
16  following provisions with sufficient frequency so as to
17  establish a pattern of wrongdoing on the part of the
18  applicant:
19         (13)  The applicant or licensee has refused to deliver,
20  in reasonable quantities and within a reasonable time, to any
21  duly licensed motor vehicle dealer who has an agreement with
22  such applicant or licensee for the retail sale of new motor
23  vehicles and parts for motor vehicles sold or distributed by
24  the applicant or licensee, any such motor vehicles or parts as
25  are covered by such agreement, including:
26         (a)  The failure to provide to all line-make motor
27  vehicle dealers all models manufactured for that line-make;
28         (b)  Requiring a dealer to pay an extra fee, purchase
29  unreasonable advertising displays or other materials, or
30  remodel, renovate, or recondition the dealer's facilities or
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  1  provide exclusive facilities as a prerequisite to receiving a
  2  model or series of vehicles; or
  3         (c)  Requiring a dealer to enter into a separate
  4  franchise agreement for any model or series.
  5
  6  However, a licensee or common entity may require its dealers
  7  to purchase special tools or equipment, stock reasonable
  8  quantities of certain parts or accessories, or participate in
  9  training programs that are reasonably necessary to enable the
10  dealers to sell or service any model or series of models if
11  such requirements are reasonable, written, and uniformly
12  applied to all of the dealers in this state specifically
13  publicly advertised by such applicant or licensee to be
14  available for immediate delivery. However, The failure to
15  deliver any motor vehicle or part is will not be considered a
16  violation of this section if the failure is due to act of God,
17  work stoppage, or delay due to a strike or labor difficulty, a
18  freight embargo, national product shortage, or other cause
19  over which the applicant or licensee has no control. The
20  failure to deliver parts or components for the current and 5
21  preceding years' models within 60 days from date of order
22  shall be deemed prima facie unreasonable.
23         (20)  The applicant or licensee has established a
24  system of motor vehicle allocation or distribution or has
25  implemented a system of allocation or distribution of motor
26  vehicles to one or more of its franchised motor vehicle
27  dealers which is unfair, inequitable, unreasonably
28  discriminatory, or not supportable by reason and good cause
29  after considering the equities of the affected motor vehicles
30  dealer or dealers. A licensee must maintain for 3 years all
31  records that fully describe the method or formula of
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  1  allocation or distribution of motor vehicles, as well as
  2  records of the actual allocation or distribution of motor
  3  vehicles, and all other records that directly or indirectly
  4  affect the allocation or distribution of motor vehicles to its
  5  dealers. These records must be made available, at no cost to a
  6  motor vehicle dealer who has a franchise agreement with the
  7  licensee, within 30 days after the dealer files a written
  8  request with the licensee. The dealer must also file a copy of
  9  such request with the department.
10         (24)  The applicant or licensee has sold, or offered to
11  sell, any service, vehicle, or product to a retail purchaser
12  in this state, except through a motor vehicle dealer holding a
13  franchise for the line-make vehicle. This subsection does not
14  apply to an applicant or licensee that is exempt pursuant to
15  s. 320.645 or to a replacement vehicle provided by the
16  licensee pursuant to chapter 681.
17         (25)(a)  The applicant or licensee has charged back a
18  motor vehicle dealer for a warranty payment or did not
19  reimburse the dealer for any service or repair made to correct
20  a defective condition of a motor vehicle covered under the
21  licensee's warranty which correction was desirable to prevent
22  deterioration of the value of the vehicle, or was necessary to
23  correct a potential safety hazard, unless the licensee proves
24  by clear and convincing evidence that the service or repair
25  was not necessary at the time it was made, was not actually
26  performed, or was fraudulent, or that the dealer did not
27  reasonably substantiate or justify the claim, as required by
28  the warranty procedure manual or in some other reasonable
29  manner.
30         (b)  The applicant or licensee has required a dealer to
31  file a statement of actual time spent or consider actual time
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  1  spent in any repair, unless actual time is the basis for
  2  reimbursement; performed an audit for warranty compensation
  3  for payments made more than 12 months before the audit, unless
  4  the licensee has reasonable grounds to believe that a claim
  5  was fraudulent, and waives all claims regarding payments for
  6  warranty repairs 18 months after payment.
  7         1.  If a licensee intends to charge back a warranty
  8  payment, or reject a warranty claim, the licensee first must
  9  give the dealer a written notice, stating the reasons for the
10  charge back or rejection, detailing the facts showing that the
11  warranty work was not necessary, not actually performed,
12  fraudulent, or not reasonably substantiated. A dealer, within
13  60 days after receipt of the notice, may file a complaint with
14  a court of competent jurisdiction, alleging that the licensee
15  violated this section.
16         2.  During the pendency of the action, potential charge
17  backs shall be stayed. If the court finds for the dealer, the
18  licensee is liable to the dealer for two times the amount of
19  any charge back or rejected warranty claim, plus reasonable
20  attorney's fees and court costs.
21         (c)  The applicant or licensee has denied a dealer's
22  claim for sales or service incentives, rebates, or other forms
23  of incentive compensation, reduced the amount paid, or charged
24  back a payment, unless the licensee proves by clear and
25  convincing evidence that the claim was fraudulent or that the
26  dealer, after written notice and a reasonable opportunity to
27  cure, of not less than 60 days, did not reasonably
28  substantiate the claim.
29         1.  A licensee may not audit sales, service, or parts
30  incentives or rebates, or any other forms of incentive
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  1  compensation paid more than 12 months before the commencement
  2  of the audit.
  3         2.  If a licensee intends to charge back a payment, or
  4  reject a claim, for any incentive, it must give the dealer a
  5  written notice detailing the facts, showing that the claim was
  6  fraudulent or unsubstantiated. A dealer, within 60 days after
  7  receipt of the notice may file a complaint with a court of
  8  competent jurisdiction, alleging that the licensee violated
  9  this section.
10         3.  During the pendency of the action, potential charge
11  backs shall be stayed. If the court finds for the dealer, the
12  licensee is liable to the dealer for two times the amount of
13  any charge back or rejected claim, plus reasonable attorney's
14  fees and court costs.
15         (d)  The applicant or licensee has conducted,
16  attempted, or threatened to conduct an audit to coerce a
17  dealer to forego any rights granted to the dealer under ss.
18  320.60 through 320.70.
19         (26)  The applicant or licensee has offered refunds,
20  incentives, or other inducements to any person to influence
21  the purchase of new motor vehicles of a certain line-make
22  without making the same offer to all dealers with the same
23  line-make within the state. A licensee may, however, offer
24  uniform discounts, rebates, or incentives to all of its
25  dealers or may implement reasonable regional marketing
26  programs that provide equal and measurable ability, based on
27  credible criteria, for all of the licensee's line-make dealers
28  in this state to qualify for participation. In sales to
29  commercial fleet accounts or motor vehicle leasing entities,
30  any subsidy, discount, incentive, or other inducement must be
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  1  uniformly available to all of the licensee's line-make motor
  2  vehicle dealers in this state.
  3         (27)  The applicant or licensee, by contract or
  4  otherwise, has restricted, threatened, or attempted to
  5  restrict, a dealer from selling vehicles, parts or accessories
  6  to any retail customer, who is the ultimate user of the
  7  vehicle, domiciled in another state or foreign country,
  8  including refusing to provide motor vehicles in compliance
  9  with applicable law, withholding payment, or charging back
10  monies otherwise available to the dealer under a sales
11  promotion, program, or contest, or excluding a vehicle or
12  dealer from participation in a promotion, program, or contest
13  offered by the licensee.
14         (28)  The applicant or licensee has wrongfully or
15  unreasonably rejected or withheld approval of a proposed
16  transfer of a franchise agreement, pursuant to s. 320.643.
17         (29)  The applicant or licensee has published,
18  disclosed, or otherwise made available information, including
19  composite information, obtained from a motor vehicle dealer.
20         (30)  The applicant or licensee has introduced a
21  franchise agreement containing a requirement that a dealer
22  arbitrate or mediate any issue with the licensee before filing
23  a complaint with the department or a court, as permitted by s.
24  320.60 through s. 320.70, unless the requirement is voidable
25  by the dealer, and the provisions require that the arbitrator
26  must apply s. 320.60 through s. 320.70 in resolving the matter
27  and that either party may appeal the decision of the
28  arbitrator to the District Court of Appeal for the district in
29  which the dealer's principal place of business is located.
30         (31)  The applicant or licensee has competed with one
31  of its franchised motor vehicle dealers in this state.
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  1         (32)  The applicant or licensee has required that in
  2  any arbitration, mediation, or civil or administrative
  3  proceeding in which the dealer asserts any claims, rights, or
  4  defenses arising under s. 320.60 through s. 320.70 or a
  5  franchise agreement, that the dealer or any non-prevailing
  6  party compensate the licensee or any common entity for
  7  attorney's fees, court costs, or other expenses.
  8         (33)  The applicant or licensee has offered, or allowed
  9  a parent, subsidiary, affiliate, or common entity to offer, a
10  program under which financing or lease rates to customers of
11  one dealer are less than rates made available to customers of
12  all other dealers of the same line-make in this state,
13  regardless of the other provisions of such a program, and
14  regardless of whether a motor vehicle dealer is eligible for
15  or elects to participate in such a program.
16         Section 4.  Subsections (1), (2), (3), and (4) of
17  section 320.641, Florida Statutes, are amended to read:
18         320.641  Unfair cancellation of franchise agreements.--
19         (1)(a)  An applicant or licensee shall give written
20  notice to the motor vehicle dealer and the department of the
21  licensee's intention to discontinue, cancel, or fail to renew
22  a franchise agreement or of the licensee's intention to modify
23  a franchise or replace a franchise with a succeeding
24  franchise, which modification or replacement may will
25  adversely alter the rights or obligations of a motor vehicle
26  dealer under an existing franchise agreement or may will
27  substantially impair the sales, service obligations, or
28  investment of the motor vehicle dealer, at least 90 days
29  before the effective date thereof, together with the specific
30  grounds for such action.
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  1         (b)  The failure by the licensee to comply with the
  2  90-day notice period and procedure prescribed herein shall
  3  render voidable, at the option of the motor vehicle dealer,
  4  any discontinuation, cancellation, nonrenewal, modification,
  5  or replacement of any franchise agreement.  Designation of a
  6  franchise agreement at a specific location as a "nondesignated
  7  point" shall be deemed an evasion of this section and
  8  constitutes an unfair cancellation.
  9         (2)  Franchise agreements are deemed to be continuing
10  unless the applicant or licensee has notified the department
11  of the discontinuation of, cancellation of, failure to renew,
12  modification of, or replacement of the agreement of any of its
13  motor vehicle dealers; and annual renewal of the license
14  provided for under ss. 320.60-320.70 is not necessary for any
15  cause of action against the licensee.
16         (3)  Any motor vehicle dealer that is notified by the
17  licensee that the dealer's whose franchise agreement will be
18  is discontinued, canceled, not renewed, modified, or replaced
19  may, within the 90-day notice period, file a petition or
20  complaint for a determination of whether such action is an
21  unfair or prohibited discontinuation, cancellation,
22  nonrenewal, modification, or replacement. The licensee has the
23  burden of establishing that such action is fair and not
24  prohibited. In addition to any express changes to a franchise
25  agreement, modifications covered by this subsection include
26  any attempt by the licensee to implement or enforce any
27  policy, procedure, standard, memorandum, addendum, or
28  requirement other than one required by applicable law, which
29  changes current practices or procedures and is not part of the
30  franchise agreement. Agreements and certificates of
31  appointment shall continue in effect until final determination
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  1  of the issues raised in such petition or complaint by the
  2  motor vehicle dealer.
  3         (a)  Until a final determination, including exhaustion
  4  of all appellate remedies, is made, a franchise agreement
  5  shall remain in force and the dealer shall retain all rights
  6  and remedies provided by the franchise agreement and law. If a
  7  transfer is approved by the licensee or mandated by law, the
  8  termination proceeding shall be dismissed with prejudice. If a
  9  dealer proposes a transfer, pursuant to s. 320.643, of the
10  franchise agreement or a majority equity interest, prior to a
11  final determination of the termination proceeding, supersedeas
12  shall be granted without bond in the termination proceeding,
13  pending a final determination. If the first transfer proposed
14  pursuant to this subsection is rejected by the licensee and
15  not mandated by law, and the dealer proposes additional
16  transfers, the dealer may obtain a supersedeas, without bond,
17  of the termination proceeding, pursuant to such proposed
18  transfer, if additional transfers are proposed in good faith
19  and not for purposes of delay.
20         (b)  To discontinue, cancel, or refuse to renew a
21  franchise agreement, a licensee must prove that such action is
22  permitted by the franchise agreement; undertaken in good faith
23  and for good cause; and based on a material and substantial
24  breach of the franchise agreement. "Good cause," as used in
25  this paragraph means conduct by the dealer, which causes
26  damage to the licensee and is substantially and significantly
27  detrimental to the licensee's business interests so as to
28  constitute a basis for action by the licensee that is
29  independent of and distinct from the franchise agreement. If
30  the termination is based on alleged deficient or inadequate
31  sales, service performance, or facilities, the licensee must
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  1  give the dealer a reasonable opportunity to cure the
  2  deficiencies before taking action against the dealer. A
  3  licensee may not terminate, discontinue, or refuse to renew a
  4  franchise agreement on the basis of fraud unless the licensee
  5  proves by clear and convincing evidence that the person
  6  designated as dealer-operator or dealer-principal in the
  7  franchise agreement had actual knowledge of the fraud at the
  8  time it occurred or failed, within a reasonable time after
  9  being advised of the fraud, to take action reasonably
10  necessary to prevent it from continuing or reoccurring. A
11  modification or replacement of a franchise agreement is unfair
12  if it is not clearly permitted by the franchise agreement, is
13  not undertaken in good faith and for good cause, fails to
14  consider the dealer's investment in the franchise, will
15  adversely affect the return on such investment, or is
16  undertaken without regard to the equities of the dealer. A
17  discontinuation, cancellation, or nonrenewal of a franchise
18  agreement is unfair if it is not clearly permitted by the
19  franchise agreement; is not undertaken in good faith; is not
20  undertaken for good cause; or is based on an alleged breach of
21  the franchise agreement which is not in fact a material and
22  substantial breach.
23         (4)  Notwithstanding any other provision of this
24  section, the failure of a motor vehicle dealer to be engaged
25  in business with the public for 10 consecutive business days
26  constitutes abandonment by the dealer of his or her franchise
27  agreement. If any motor vehicle dealer abandons his or her
28  franchise agreement, he or she has no cause of action under
29  this section. For the purpose of this section, a dealer shall
30  be considered to be engaged in business with the public if a
31  sales and service facility is open and is performing such
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  1  services 8 hours a day, 5 days a week, excluding holidays.
  2  However, it will not be considered abandonment if such failure
  3  to engage in business is due to an act of God, a work
  4  stoppage, or a delay due to a strike or labor difficulty, a
  5  freight embargo, or other cause over which the motor vehicle
  6  dealer has no control, including any violation of ss.
  7  320.60-320.70.
  8         Section 5.  Paragraph (b) of subsection (2) and
  9  subsection (3) of section 320.642, Florida Statutes, are
10  amended to read:
11         320.642  Dealer licenses in areas previously served;
12  procedure.--
13         (2)
14         (b)  In determining whether the existing franchised
15  motor vehicle dealer or dealers are providing adequate
16  representation in the community or territory for the
17  line-make, the department may consider evidence which may
18  include, but is not limited to:
19         1.  The impact of the establishment of the proposed or
20  relocated dealer on the consumers, public interest, existing
21  dealers, and the licensee; provided, however, that financial
22  impact may only be considered with respect to the protesting
23  dealer or dealers.
24         2.  The size and permanency of investment reasonably
25  made and reasonable obligations incurred by the existing
26  dealer or dealers to perform their obligations under the
27  dealer agreement.
28         3.  The reasonably expected market penetration of the
29  line-make motor vehicle for the community or territory
30  involved, after consideration of all factors which may affect
31  said penetration, including, but not limited to, demographic
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  1  factors such as age, income, education, size class preference,
  2  product popularity, retail lease transactions, import
  3  penetration, or other factors affecting sales to consumers of
  4  the community or territory. Any geographic comparison area
  5  used to evaluate the performance of the line-make must be
  6  reasonably similar in demographic factors to the community or
  7  territory, including age, income, import penetration,
  8  education, size class preference, and product popularity, and
  9  may not be smaller than a county. Reasonably expected market
10  penetration must be measured with respect to the community or
11  territory as a whole.
12         4.  Any actions by the licensees in denying its
13  existing dealer or dealers of the same line-make the
14  opportunity for reasonable growth, market expansion, or
15  relocation, including the availability of line-make vehicles
16  in keeping with the reasonable expectations of the licensee in
17  providing an adequate number of dealers in the community or
18  territory.
19         5.  Any attempts by the licensee to coerce the existing
20  dealer or dealers into consenting to additional or relocated
21  franchises of the same line-make in the community or
22  territory.
23         6.  Distance, travel time, traffic patterns, and
24  accessibility between the existing dealer or dealers of the
25  same line-make and the location of the proposed additional or
26  relocated dealer.
27         7.  Whether benefits to consumers will likely occur
28  from the establishment or relocation of the dealership which
29  the protesting dealer or dealers prove cannot be obtained by
30  other geographic or demographic changes or expected changes in
31  the community or territory.
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  1         8.  Whether the protesting dealer or dealers are in
  2  substantial compliance with their dealer agreement.
  3         9.  Whether there is adequate interbrand and intrabrand
  4  competition with respect to said line-make in the community or
  5  territory and adequately convenient consumer care for the
  6  motor vehicles of the line-make, including the adequacy of
  7  sales and service facilities.
  8         10.  Whether the establishment or relocation of the
  9  proposed dealership appears to be warranted and justified
10  based on economic and marketing conditions pertinent to
11  dealers competing in the community or territory, including
12  anticipated future changes.
13         11.  The volume of registrations and service business
14  transacted by the existing dealer or dealers of the same
15  line-make in the relevant community or territory of the
16  proposed dealership.
17         (3)  An existing franchised motor vehicle dealer or
18  dealers shall have standing to protest a proposed additional
19  or relocated motor vehicle dealer where the existing motor
20  vehicle dealer or dealers have a franchise agreement for the
21  same line-make vehicle to be sold or serviced by the proposed
22  additional or relocated motor vehicle dealer and are
23  physically located so as to meet or satisfy any of the
24  following requirements or conditions:
25         (a)  If the proposed additional or relocated motor
26  vehicle dealer is to be located in a county with a population
27  of less than 300,000 according to the most recent data of the
28  United States Census Bureau or the data of the Bureau of
29  Economic and Business Research of the University of Florida:
30         1.  The proposed additional or relocated motor vehicle
31  dealer is to be located in the area designated or described as
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  1  the area of responsibility, or such similarly designated area,
  2  including the entire area designated as a multiple-point area,
  3  in the franchise agreement or in any related document or
  4  commitment with the existing motor vehicle dealer or dealers
  5  of the same line-make as such agreement existed upon October
  6  1, 1988;
  7         2.  The existing motor vehicle dealer or dealers of the
  8  same line-make have a licensed franchise location within a
  9  radius of 20 miles of the location of the proposed additional
10  or relocated motor vehicle dealer; or
11         3.  Any existing motor vehicle dealer or dealers of the
12  same line-make can establish that during any 12-month period
13  of the 36-month period preceding the filing of the licensee's
14  application for the proposed dealership, such dealer or its
15  predecessor made 25 percent of its retail sales of new motor
16  vehicles to persons whose registered household addresses were
17  located within a radius of 20 miles of the location of the
18  proposed additional or relocated motor vehicle dealer;
19  provided such existing dealer is located in the same county or
20  any county contiguous to the county where the additional or
21  relocated dealer is proposed to be located.
22         (b)  If the proposed additional or relocated motor
23  vehicle dealer is to be located in a county with a population
24  of more than 300,000 according to the most recent data of the
25  United States Census Bureau or the data of the Bureau of
26  Economic and Business Research of the University of Florida:
27         1.  Any existing motor vehicle dealer or dealers of the
28  same line-make have a licensed franchise location within a
29  radius of 12.5 miles of the location of the proposed
30  additional or relocated motor vehicle dealer; or
31
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  1         2.  Any existing motor vehicle dealer or dealers of the
  2  same line-make can establish that during any 12-month period
  3  of the 36-month period preceding the filing of the licensee's
  4  application for the proposed dealership, such dealer or its
  5  predecessor made 25 percent of its retail sales of new motor
  6  vehicles to persons whose registered household addresses were
  7  located within a radius of 12.5 miles of the location of the
  8  proposed additional or relocated motor vehicle dealer;
  9  provided such existing dealer is located in the same county or
10  any county contiguous to the county where the additional or
11  relocated dealer is proposed to be located.
12         Section 6.  Subsection (3) is added to section 320.643,
13  Florida Statutes, to read:
14         320.643  Transfer, assignment, or sale of franchise
15  agreements.--
16         (3)  Notwithstanding the terms of a franchise
17  agreement, a licensee does not have a right of first refusal
18  regarding any proposed transfer of a franchise agreement or
19  ownership of a motor vehicle dealership.
20         Section 7.  Section 320.645, Florida Statutes, is
21  amended to read:
22         320.645  Restriction upon ownership of dealership by
23  licensee.--
24         (1)  A No licensee, including a manufacturer or agent
25  of a manufacturer, or any parent, subsidiary, common entity,
26  or officer or representative of the licensee may not shall
27  own, control, or operate, either directly or indirectly, a
28  motor vehicle dealership in this state for the sale or service
29  of motor vehicles that which have been or are offered for sale
30  under a franchise agreement with a motor vehicle dealer in
31  this state, nor may a licensee be issued a dealer license
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  1  under s. 320.27. However, a no such licensee will be deemed to
  2  be in violation of this section:
  3         (a)  May operate When operating a motor vehicle
  4  dealership for a temporary period, not to exceed 1 year,
  5  during the transition from one owner of the motor vehicle
  6  dealership to another;
  7         (b)  May, to broaden the diversity of its dealer body
  8  and enhance opportunities for qualified persons who are
  9  members of a group that has historically been underrepresented
10  in its dealer body or for other qualified persons who lack the
11  resources to buy or capitalize a dealership outright,
12  temporarily own an interest in a motor vehicle dealership When
13  operating a motor vehicle dealership temporarily for a
14  reasonable period, not to exceed 1 year, or in a bona fide
15  relationship with an independent person who is not associated
16  with the licensee in any manner other than the franchise
17  agreement and who has no equity interest in another dealer
18  development arrangement, other than a licensee or its agent,
19  common entity, or affiliate, who has a bona fide dealer
20  development arrangement and has made a significant investment
21  that is subject to loss in the dealership and who can
22  reasonably expect to acquire full ownership of the dealership
23  on reasonable terms and conditions; or
24         (c)  May own and operate a motor vehicle dealership if
25  the department determines, after a hearing on the matter,
26  pursuant to chapter 120, at the request of any person, that
27  there is no independent person available in the community or
28  territory to own and operate the motor vehicle dealership in a
29  manner consistent with the public interest.
30         (2)(a)  In any such case under paragraph (1)(a) or
31  paragraph (1)(c), the licensee must continue to make the motor
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  1  vehicle dealership available for sale to an independent person
  2  at a fair and reasonable price. Approval of the sale of such a
  3  motor vehicle dealership to a proposed motor vehicle dealer
  4  may shall not be unreasonably withheld.
  5         (b)  In any case, under paragraph (1)(b), the licensee
  6  must certify, in writing, to the department that the
  7  provisions of paragraph (b) have been complied with and that
  8  the dealer development arrangement is bona fide and not an
  9  attempt by the licensee to own, operate, or control a
10  dealership in this state.
11         (3)  The department or any person, pursuant to s.
12  320.695, may file an action to determine whether a dealer
13  development arrangement is bona fide. If it is determined that
14  the arrangement is not bona fide or otherwise does not meet
15  the statutory requirements, the department shall take
16  appropriate action, including imposing sanctions pursuant to
17  s. 320.64 and withholding or revoking the license issued to
18  the dealership.
19         (4)  A licensee, affiliate, or common entity that
20  temporarily owns, pursuant to paragraph (1)(b), an interest in
21  a dealership, may not discriminate against any other
22  franchised dealer in the same line-make in any matter governed
23  by the franchise agreement, including the execution or
24  implementation of policies, programs, benefits, and
25  incentives, and the sale and allocation of vehicles to its
26  dealers.
27         (5)  The department may issue subpoenas and require the
28  production of such documents and information as necessary in
29  any action under this section.
30         (6)  As used in this section, the term:
31
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  1         (a)  "Significant investment" means a substantial
  2  amount of personal initial money, but not less than 6 percent
  3  of the investment, considering the fair market value of the
  4  dealership, which money was acquired and obtained from sources
  5  other than the licensee, its affiliates, or common entities
  6  and is not encumbered by the person's interest in the
  7  dealership. In determining fair market value, if ownership of
  8  the dealership has been transferred within the preceding 12
  9  months, that purchase price shall be the fair market value.
10  Otherwise one or more independent appraisals must be obtained
11  by the licensee to place a fair market value on the
12  dealership.
13         (b)  "Reasonable terms and conditions" means that
14  profits from the dealership operations are sufficient to allow
15  full ownership of the dealership by the independent person
16  within a reasonable time period, not to exceed 10 years,
17  absent exceptional circumstances demonstrated by the
18  independent person or the licensee; that the independent
19  person has sufficient control to permit acquisition of
20  ownership; and that the dealer development arrangement cannot
21  be terminated by the licensee to avoid full ownership by the
22  independent person. The terms and conditions of the agreement
23  must permit the independent person to purchase the dealership
24  at any time without premium or penalty.
25         (7)(2)  This section may shall not be construed to
26  prohibit any licensee from owning or operating a motor vehicle
27  dealership in this state if such dealership was owned,
28  controlled, or operated by the licensee on July 1, 2000 May
29  31, 1984.
30         Section 8.  Section 320.695, Florida Statutes, is
31  amended to read:
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  1         320.695  Injunction.--In addition to the remedies
  2  provided in this chapter, and notwithstanding the existence of
  3  any adequate remedy at law, the department, any person, or any
  4  motor vehicle dealer in the name of the department and state
  5  and for the use and benefit of the motor vehicle dealer, is
  6  authorized to make application to any circuit court of the
  7  state for the grant, upon a hearing and for cause shown, of a
  8  temporary or permanent injunction, or both, restraining any
  9  person from acting as a licensee under the terms of ss.
10  320.60-320.70 without being properly licensed hereunder, or
11  from violating, threatening to violate, or continuing to
12  violate any of the provisions of ss. 320.60-320.70, or from
13  failing or refusing to comply with the requirements of this
14  law or any rule or regulation adopted hereunder.  Such
15  injunction shall be issued without bond.  A single act in
16  violation of the provisions of ss. 320.60-320.70 is shall be
17  sufficient to authorize the issuance of an injunction, whether
18  or not an adequate remedy at law exists or injury will result
19  without an injunction.  However, this statutory remedy shall
20  not be applicable to any motor vehicle dealer after final
21  determination by the department under s. 320.641(3).
22         Section 9.  This act shall take effect upon becoming a
23  law.
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  2                          SENATE SUMMARY
  3    Revises provisions relating to the relationship between
      motor vehicle licensees and their dealers. Prohibits the
  4    granting of a replacement application during certain
      actions alleging the unfair cancellation of a dealer
  5    agreement. Provides additional grounds for departmental
      sanctions against a motor vehicle licensee. Provides for
  6    the maintenance and disclosure of certain records.
      Revises provisions relating to the unfair cancellation of
  7    franchise agreements. Specifies additional acts that are
      grounds for actions against licensees. Establishes
  8    geographic area comparison area standards for use in
      determining whether certain dealers are providing
  9    adequate representation. Prohibits licensees from having
      a right of first refusal on the sale or transfer of
10    dealerships and franchise agreements. Provides conditions
      under which a licensee is permitted to own a dealership.
11    Provides additional grounds for the imposition of
      injunctive relief. (See bill for details.)
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