Senate Bill 0810c1

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    Florida Senate - 2000                            CS for SB 810

    By the Committee on Agriculture and Consumer Services; and
    Senator Carlton




    303-1890-00

  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 a definition; providing for

  5         application to certain civil actions; amending

  6         s. 526.311, F.S.; revising enforcement

  7         provisions; transferring from the Department of

  8         Legal Affairs to the Department of Agriculture

  9         and Consumer Services responsibilities as the

10         lead agency to enforce the Motor Fuel Marketing

11         Practices Act; revising disposition of funds

12         collected in civil actions; amending ss.

13         526.312, 526.313, F.S., to conform; amending s.

14         526.3135, F.S.; specifying certain required

15         reporting by the Division of Standards of the

16         Department of Agriculture and Consumer

17         Services; providing an effective date.

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

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21         Section 1.  Subsection (7) of section 526.303, Florida

22  Statutes, is amended to read:

23         526.303  Definitions.--As used in this act:

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

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

26  allowances, trade discounts, and rebates actually received,

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

28  nonrefiner's supplier, as determined in accordance with

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

30  local taxes and inspection fees applicable to motor fuel;

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

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    Florida Senate - 2000                            CS for SB 810
    303-1890-00




  1  and the reasonable rental value of the retail outlet

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

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

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

  5  other item and the direct labor costs and the reasonable

  6  rental value of the retail outlet attributable to the retail

  7  sale of the item by the nonrefiner.

  8         Section 2.  The amendment to section 526.303(7),

  9  Florida Statutes, by section 1 shall apply to any civil cause

10  of action accruing on or after the effective date of this act.

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

12  Florida Statutes, are amended to read:

13         526.311  Enforcement; civil penalties; injunctive

14  relief.--

15         (2)  The Department of Agriculture and Consumer

16  Services shall investigate any complaints regarding violations

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

18  documents and records as part of its investigation of a

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

20  proprietary confidential business information contained in the

21  documents or records received by the department pursuant to a

22  written request or a Department of Legal Affairs subpoena are

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

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

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

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

27  department, through the department's office of general

28  counsel, may of Agriculture and Consumer Services may request

29  that the Department of Legal Affairs issue and serve a

30  subpoena subpoenas to compel the production of such documents

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

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    Florida Senate - 2000                            CS for SB 810
    303-1890-00




  1  subpoena issued under this section, the department of Legal

  2  Affairs may petition a court of competent jurisdiction to

  3  enforce the subpoena and assess such sanctions as the court

  4  may direct. Refiners shall afford the department of

  5  Agriculture and Consumer Services reasonable access to the

  6  refiners' posted terminal price.  After completion of an

  7  investigation, the Department of Agriculture and Consumer

  8  Services shall give the results of its investigation to the

  9  Department of Legal Affairs.  The Department of Legal Affairs

10  may then subpoena additional relevant records or testimony if

11  it determines that the Department of Agriculture and Consumer

12  Services' investigation shows a violation has likely occurred.

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

14  photographs, files, sound recordings, or other business

15  material, regardless of form or characteristics, obtained by

16  the a department of Legal Affairs subpoena are confidential

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

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

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

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

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

22  or proprietary confidential business information held by the

23  department pursuant to such investigation shall be considered

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

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

26  materials may be used in any administrative or judicial

27  proceeding so long as the confidential or proprietary nature

28  of the material is maintained.

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

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

31  department of Legal Affairs in any court of competent

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    Florida Senate - 2000                            CS for SB 810
    303-1890-00




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

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

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

  4  department of Legal Affairs shall be deposited into shared

  5  equally between the Department of Legal Affairs Trust Fund and

  6  the General Inspection Trust Fund.

  7         Section 4.  Subsection (2) of section 526.312, Florida

  8  Statutes, is amended to read:

  9         526.312  Enforcement; private actions; injunctive

10  relief.--

11         (2)  On the application for a temporary restraining

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

13  discretion having due regard for the public interest, may

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

15  without surety, as conditions and circumstances may require.

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

17  $50,000.  Upon proper application by the plaintiff, the court

18  shall grant preliminary injunctive relief if the plaintiff

19  shows:

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

21  relief requested.

22         (b)  There exist sufficiently serious questions going

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

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

25  hardships imposed on the defendant and the public interest by

26  the issuance of such preliminary injunctive relief will be

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

28  if such preliminary injunctive relief were not granted.

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    Florida Senate - 2000                            CS for SB 810
    303-1890-00




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

  2  apply to actions for injunctive relief brought by the

  3  department of Legal Affairs under s. 526.311.

  4         Section 5.  Section 526.313, Florida Statutes, is

  5  amended to read:

  6         526.313  Limitations period for actions.--Any action

  7  brought by the department of Legal Affairs shall be brought

  8  within 2 years after the alleged violation occurred or should

  9  reasonably have been discovered.  Any action brought by any

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

11  violation occurred or should reasonably have been discovered,

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

13  unlawful price discrimination shall be brought within 2 years

14  from the date the alleged violation occurred or should

15  reasonably have been discovered.

16         Section 6.  Section 526.3135, Florida Statutes, is

17  amended to read:

18         526.3135  Reports by the Division of Standards

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

20  of Standards Department of Agriculture and Consumer Services

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

22  complaints received by the Department of Agriculture and

23  Consumer Services pursuant to this act.  Such report shall

24  contain at least the information required by s.

25  570.544(6)(b)2.-4. and shall be presented to the Speaker of

26  the House of Representatives and the President of the Senate

27  no later than January 1 of each year.

28         Section 7.  This act shall take effect upon becoming a

29  law.

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    Florida Senate - 2000                            CS for SB 810
    303-1890-00




  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                         Senate Bill 810

  3

  4  The committee substitute makes the following changes:

  5  *     Deletes language that redefines "retail outlet" to
          include a facility selling only to its members.
  6
    *     Deletes language that provides that discounts received
  7        at the time of purchase are considered when determining
          whether a refiner or nonrefiner's retail sales price is
  8        below the refiner or nonrefiner's cost.

  9  *     Deletes language that stipulates that the legislative
          intent of the act is to clarify and conform existing
10        law.

11  *     Stipulates that the amendment to s. 526.303(7), F.S.,
          shall apply to any civil cause of action accruing on or
12        after the effective date of this act.

13  *     Transfers the authority to bring a civil action for
          violations of the Motor Fuel Marketing Practices Act
14        from the Department of Legal Affairs to the Department
          of Agriculture and Consumer Services.
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    *     Provides that all funds collected in such actions are to
16        be deposited in the General Inspection Trust Fund,
          rather than being shared equally between the Department
17        of Legal Affairs Trust Fund and the General Inspection
          Trust Fund.
18
    *     Provides that the Department of Agriculture and Consumer
19        Services must show cause for injunctive relief against
          alleged violators of the Motor Fuel Marketing Practices
20        Act.

21  *     Provides that the Department of Agriculture and Consumer
          Services must bring action within two years after
22        alleged violations have occurred.

23  *     Specifies that the Division of Standards shall compile a
          report of all complaints received by the Department of
24        Agriculture and Consumer Services regarding the Motor
          Fuel Marketing Practices Act, for presentation to the
25        President of the Senate and the Speaker of the House of
          Representatives no later than January 1 of each year.
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