House Bill 0755

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    Florida House of Representatives - 2000                 HB 755

        By Representative Goodlette






  1                      A bill to be entitled

  2         An act relating to the Motor Fuel Marketing

  3         Practices Act; amending s. 526.303, F.S.;

  4         revising definitions; amending s. 526.304,

  5         F.S.; clarifying prohibited predatory practices

  6         and an exception; providing legislative intent;

  7         amending s. 526.311, F.S.; revising enforcement

  8         provisions; transferring from the Department of

  9         Legal Affairs to the Department of Agriculture

10         and Consumer Services responsibilities as the

11         lead agency to enforce the Motor Fuel Marketing

12         Practices Act; revising disposition of funds

13         collected in civil actions; amending ss.

14         526.312 and 526.313, F.S., to conform; amending

15         s. 526.3135, F.S.; specifying certain required

16         reporting by the Division of Standards of the

17         Department of Agriculture and Consumer

18         Services; providing an effective date.

19

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

21

22         Section 1.  Subsections (7) and (14) of section

23  526.303, Florida Statutes, are amended to read:

24         526.303  Definitions.--As used in this act:

25         (7)  "Nonrefiner cost" means: the nonrefiner's invoice

26  cost by grade of the motor fuel, by grade, less credit card

27  allowances, trade discounts, and rebates actually received,

28  which shall not be less than the posted terminal price of the

29  nonrefiner's supplier, as determined in accordance with

30  subsection (8), to which shall be added federal, state, and

31  local taxes and inspection fees applicable to motor fuel;

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    Florida House of Representatives - 2000                 HB 755

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  1  freight charges to the retail outlet; and direct labor costs

  2  and the reasonable rental value of the retail outlet

  3  attributable to the sale of motor fuel by the nonrefiner.  If

  4  motor fuel is sold with another item at a combined price,

  5  nonrefiner motor fuel cost shall also include the cost of the

  6  other item and the direct labor costs and the reasonable

  7  rental value of the retail outlet attributable to the retail

  8  sale of the item by the nonrefiner.

  9         (14)  "Retail outlet" means a facility, including land

10  and improvements, where motor fuel is offered for sale, at

11  retail, to the motoring public and includes, but is not

12  limited to, any facility which sells only to members.

13         Section 2.  Subsections (1) and (2) of section 526.304,

14  Florida Statutes, are amended to read:

15         526.304  Predatory practices unlawful; exceptions.--

16         (1)(a)  It is unlawful for any refiner engaged in

17  commerce in this state to sell any grade or quality of motor

18  fuel at a retail outlet at a price which, after deducting any

19  discounts received at the time of purchase, is below refiner

20  cost, where the effect is to injure competition.

21         (b)  It is unlawful for any nonrefiner engaged in

22  commerce in this state to sell any grade or quality of motor

23  fuel at a retail outlet at a price which, after deducting any

24  discounts received at the time of purchase, is below

25  nonrefiner cost, where the effect is to injure competition.

26         (2)(a)  An isolated, inadvertent incident involving

27  activity prohibited pursuant to subsection (1) or subsection

28  (3) shall not be a violation of this act.

29         (b)  A refiner's sale below refiner cost or a

30  nonrefiner's sale below nonrefiner cost made in good faith to

31  meet an equally low retail price, net of any discounts

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  1  received at the time of sale, of a competitor selling motor

  2  fuel of like grade in the same relevant geographic market

  3  which can be used in the same motor vehicle, or of the same or

  4  similar items in combination with motor fuel of like grade

  5  which can be used in the same motor vehicle, is not a

  6  violation of this act.

  7         Section 3.  It is the intent of the Legislature that

  8  sections 1 and 2 clarify and conform existing law.

  9         Section 4.  Subsections (2) and (3) of section 526.311,

10  Florida Statutes, are amended to read:

11         526.311  Enforcement; civil penalties; injunctive

12  relief.--

13         (2)  The Department of Agriculture and Consumer

14  Services shall investigate any complaints regarding violations

15  of this act and may request in writing the production of

16  documents and records as part of its investigation of a

17  complaint. Trade secrets, as defined in s. 812.081, and

18  proprietary confidential business information contained in the

19  documents or records received by the department pursuant to a

20  written request or a Department of Legal Affairs subpoena are

21  confidential and exempt from the provisions of s. 119.07(1)

22  and s. 24(a), Art. I of the State Constitution. If the person

23  upon whom such request was made fails to produce the documents

24  or records within 30 days after the date of the request, the

25  department, through the department's office of general

26  counsel, may of Agriculture and Consumer Services may request

27  that the Department of Legal Affairs issue and serve a

28  subpoena subpoenas to compel the production of such documents

29  and records. If any person shall refuse to comply with a

30  subpoena issued under this section, the department of Legal

31  Affairs may petition a court of competent jurisdiction to

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  1  enforce the subpoena and assess such sanctions as the court

  2  may direct. Refiners shall afford the department of

  3  Agriculture and Consumer Services reasonable access to the

  4  refiners' posted terminal price.  After completion of an

  5  investigation, the Department of Agriculture and Consumer

  6  Services shall give the results of its investigation to the

  7  Department of Legal Affairs.  The Department of Legal Affairs

  8  may then subpoena additional relevant records or testimony if

  9  it determines that the Department of Agriculture and Consumer

10  Services' investigation shows a violation has likely occurred.

11  Any records, documents, papers, maps, books, tapes,

12  photographs, files, sound recordings, or other business

13  material, regardless of form or characteristics, obtained by

14  the a department of Legal Affairs subpoena are confidential

15  and exempt from the provisions of s. 119.07(1) and s. 24(a),

16  Art. I of the State Constitution while the investigation is

17  pending. At the conclusion of an investigation, any matter

18  determined by the department of Legal Affairs or by a judicial

19  or administrative body, federal or state, to be a trade secret

20  or proprietary confidential business information held by the

21  department pursuant to such investigation shall be considered

22  confidential and exempt from the provisions of s. 119.07(1)

23  and s. 24(a), Art. I of the State Constitution.  Such

24  materials may be used in any administrative or judicial

25  proceeding so long as the confidential or proprietary nature

26  of the material is maintained.

27         (3)  The civil penalty imposed under this section may

28  be assessed and recovered in a civil action brought by the

29  department of Legal Affairs in any court of competent

30  jurisdiction. If the department of Legal Affairs prevails in a

31  civil action, the court may award it reasonable attorneys'

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  1  fees as it deems appropriate.  All funds recovered by the

  2  department of Legal Affairs shall be deposited into shared

  3  equally between the Department of Legal Affairs Trust Fund and

  4  the General Inspection Trust Fund.

  5         Section 5.  Subsection (2) of section 526.312, Florida

  6  Statutes, is amended to read:

  7         526.312  Enforcement; private actions; injunctive

  8  relief.--

  9         (2)  On the application for a temporary restraining

10  order or a preliminary injunction, the court, in its

11  discretion having due regard for the public interest, may

12  require or dispense with the requirement of a bond, with or

13  without surety, as conditions and circumstances may require.

14  If a bond is required, the amount shall not be greater than

15  $50,000.  Upon proper application by the plaintiff, the court

16  shall grant preliminary injunctive relief if the plaintiff

17  shows:

18         (a)  That he or she is a proper person to seek the

19  relief requested.

20         (b)  There exist sufficiently serious questions going

21  to the merits to make such questions a fair ground for

22  litigation; and the court determines, on balance, the

23  hardships imposed on the defendant and the public interest by

24  the issuance of such preliminary injunctive relief will be

25  less than the hardship which would be imposed on the plaintiff

26  if such preliminary injunctive relief were not granted.

27

28  The standards specified in paragraphs (a) and (b) shall also

29  apply to actions for injunctive relief brought by the

30  department of Legal Affairs under s. 526.311.

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  1         Section 6.  Section 526.313, Florida Statutes, is

  2  amended to read:

  3         526.313  Limitations period for actions.--Any action

  4  brought by the department of Legal Affairs shall be brought

  5  within 2 years after the alleged violation occurred or should

  6  reasonably have been discovered.  Any action brought by any

  7  other person shall be brought within 1 year after the alleged

  8  violation occurred or should reasonably have been discovered,

  9  except that a private action brought under s. 526.305 for

10  unlawful price discrimination shall be brought within 2 years

11  from the date the alleged violation occurred or should

12  reasonably have been discovered.

13         Section 7.  Section 526.3135, Florida Statutes, is

14  amended to read:

15         526.3135  Reports by the Division of Standards

16  Department of Agriculture and Consumer Services.--The Division

17  of Standards Department of Agriculture and Consumer Services

18  is directed to compile a report pursuant to s. 570.544 of all

19  complaints received by the Department of Agriculture and

20  Consumer Services pursuant to this act.  Such report shall

21  contain at least the information required by s.

22  570.544(6)(b)2.-4. and shall be presented to the Speaker of

23  the House of Representatives and the President of the Senate

24  no later than January 1 of each year.

25         Section 8.  This act shall take effect upon becoming a

26  law.

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    Florida House of Representatives - 2000                 HB 755

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  2                          HOUSE SUMMARY

  3
      Revises provisions relating to the Motor Fuel Marketing
  4    Practices Act to clarify definitions and prohibited
      predatory practices to conform to existing law. Revises
  5    enforcement and civil action provisions to transfer from
      the Department of Legal Affairs to the Department of
  6    Agriculture and Consumer Services responsibilities as the
      lead agency to enforce the Motor Fuel Marketing Practices
  7    Act. See bill for details.

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