HOUSE AMENDMENT
                                                  Bill No. HB 1239
    Amendment No. 01S (for drafter's use only)
                            CHAMBER ACTION
              Senate                               House
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11  The Committee on Judicial Oversight offered the following:
12  
13         Substitute Amendment for Amendment (043023) (with title
14  amendment) 
15  Remove from the bill:  Everything after the enacting clause
16  
17  and insert in lieu thereof:  
18         Section 1.  Paragraph (a) of subsection (11) of section
19  320.60, Florida Statutes, is amended and a new subsection (15)
20  is added to read:
21         320.60  Definitions for ss. 320.61-320.70.--Whenever
22  used in ss. 320.61-320.70, unless the context otherwise
23  requires, the following words and terms have the following
24  meanings:
25         (11)(a)  "Motor vehicle dealer" means any person, firm,
26  company, or corporation, or other entity, who,
27         1.  Is licensed pursuant to s. 320.27 as a "franchised
28  motor vehicle dealer" and, for commission, money or other
29  things of value, repairs or services motor vehicles or used
30  motor vehicles pursuant to an agreement as defined in
31  subsection (1), or
                                  1
    File original & 9 copies    04/12/01                          
    hgr0003                     04:37 pm         01239-jo  -774057

HOUSE AMENDMENT Bill No. HB 1239 Amendment No. 01S (for drafter's use only) 1 2. Who sells, exchanges, buys, leases or rents, or 2 offers, or attempts to negotiate a sale or exchange of any 3 interest in, motor vehicles, or 4 3. Who is engaged wholly or in part in the business of 5 selling motor vehicles, whether or not such motor vehicles are 6 owned by such person, firm, company, or corporation. 7 (15) "Sell," "selling," "sold," "exchange," "retail 8 sales," and "leases" includes any transaction where the title 9 of motor vehicle or used motor vehicle is transferred to a 10 retail consumer, and also any retail lease transaction where a 11 retail customer leases a vehicle for a period of at least 12 12 months. Establishing a price for sale pursuant to s. 13 320.64(24) does not constitute a sale or lease. 14 Section 2. Subsection (4) of section 320.61, Florida 15 Statutes, is amended to read: 16 320.61 Licenses required of motor vehicle 17 manufacturers, distributors, importers, etc.-- 18 (4) When a complaint of unfair or prohibited 19 cancellation or nonrenewal of a dealer agreement is made by a 20 motor vehicle dealer against a licensee and such complaint is 21 pending is in the process of being heard pursuant to ss. 22 320.60-320.70 by the department, no replacement application 23 for such agreement shall be granted and no license shall be 24 issued by the department under s. 320.27 to any replacement 25 dealer until a final decision is rendered by the department on 26 the complaint of unfair cancellation, so long as the dealer 27 agreement of the complaining dealer is in effect as provided 28 under s. 320.641(7). 29 Section 3. Subsections (13) and (16) are stricken, 30 subsections (14), (15), and (17)-(23) are renumbered, 31 subsection (20) is amended and renumbered as (18), and 2 File original & 9 copies 04/12/01 hgr0003 04:37 pm 01239-jo -774057
HOUSE AMENDMENT Bill No. HB 1239 Amendment No. 01S (for drafter's use only) 1 subsections (22)-(33) are added to section 320.64, Florida 2 Statutes, to read: 3 320.64 Denial, suspension, or revocation of license; 4 grounds.--A license of a licensee under s. 320.61 may be 5 denied, suspended, or revoked within the entire state or at 6 any specific location or locations within the state at which 7 the applicant or licensee engages or proposes to engage in 8 business, upon a proof that the section was violated with 9 sufficient frequency to establish a pattern of wrongdoing and 10 a license or applicant shall be liable for claims and remedies 11 provided in s. 320.695 and s. 320.697 for any violation of any 12 of the following provisions. A licensee is prohibited from 13 committing the following acts: upon proof that an applicant or 14 licensee has failed to comply with any of the following 15 provisions with sufficient frequency so as to establish a 16 pattern of wrongdoing on the part of the applicant: 17 (18)(20) The applicant or licensee has established a 18 system of motor vehicle allocation or distribution or has 19 implemented a system of allocation or distribution of motor 20 vehicles to one or more of its franchised motor vehicle 21 dealers which is unfair, inequitable, unreasonably 22 discriminatory, or not supportable by reason and good cause 23 after considering the equities of the affected motor vehicles 24 dealer or dealers. An applicant or licensee shall maintain 25 for 3 years records that describe its methods or formula of 26 allocation and distribution of its motor vehicles and records 27 of its actual allocation and distribution of motor vehicles 28 to its motor vehicle dealers in this state. 29 (22) The applicant or licensee has refused to deliver, 30 in reasonable quantities and within a reasonable time, to any 31 duly licensed motor vehicle dealer who has an agreement with 3 File original & 9 copies 04/12/01 hgr0003 04:37 pm 01239-jo -774057
HOUSE AMENDMENT Bill No. HB 1239 Amendment No. 01S (for drafter's use only) 1 such applicant or licensee for the retail sale of new motor 2 vehicles and parts for motor vehicles sold or distributed by 3 the applicant or licensee, any such motor vehicles or parts as 4 are covered by such agreement. Such refusal includes the 5 failure to offer to its same line-make franchised motor 6 vehicle dealers all models manufactured for that line-make, or 7 requiring a dealer to pay any extra fee, require a dealer to 8 execute a separate franchise agreement, purchase unreasonable 9 advertising displays or other materials, or remodel, renovate, 10 or recondition the dealer's existing facilities, or provide 11 exclusive facilities as a prerequisite to receiving a model or 12 series of vehicles. However, the failure to deliver any motor 13 vehicle or part will not be considered a violation of this 14 section if the failure is due to an act of God, work stoppage, 15 or delay due to a strike or labor difficulty, a freight 16 embargo, product shortage, or other cause over which the 17 applicant or licensee has no control. An applicant or license 18 may impose reasonable requirements on the motor vehicle 19 dealer, other than the items listed above, including, but not 20 limited to, the purchase of special tools required to properly 21 service a motor vehicle, the undertaking of sales person or 22 service person training related to the motor vehicle. 23 (23) The applicant or licensee has, directly or 24 indirectly, competed or is competing with respect to any 25 activity covered by the franchise agreement with a motor 26 vehicle dealer of the same line-make located in this state 27 with whom the applicant or licensee has entered into a 28 franchise agreement, except as permitted in s. 320.645. 29 (24) The applicant or licensee has sold a motor 30 vehicle to any retail consumer in the state except through a 31 motor vehicle dealer holding a franchise agreement for the 4 File original & 9 copies 04/12/01 hgr0003 04:37 pm 01239-jo -774057
HOUSE AMENDMENT Bill No. HB 1239 Amendment No. 01S (for drafter's use only) 1 line-make that includes the motor vehicle. This section does 2 not apply to sales by the applicant or licensee of motor 3 vehicles to its current employees, employees of companies 4 affiliated by common ownership, charitable not-for-profit- 5 organizations, and the federal government. 6 (25) The applicant or licensee has undertaken an audit 7 of warranty payments or incentive payment previously paid to a 8 motor vehicle dealer in violation of this section or has 9 failed to comply with s. 320.696. An applicant or licensee 10 may reasonably and periodically audit a motor vehicle dealer 11 to determine the validity of paid claims. Audit of warranty 12 payments shall only be for the 1-year period immediately 13 following the date the claim was paid. Audit of incentive 14 payments shall only be for an 18-month period immediately 15 following the date the incentive was paid. An applicant or 16 licensee shall not deny a claim or charge a motor vehicle 17 dealer back subsequent to the payment of the claim unless the 18 applicant or licensee can show that the claim was false or 19 fraudulent or that the motor vehicle dealer failed to 20 subsequently comply with the reasonable written and uniformly 21 applied procedures of the applicant or licensee for such 22 repairs or incentives. 23 (26) Notwithstanding the terms of any franchise 24 agreement, the applicant or licensee has refused to allocate, 25 sell, or deliver motor vehicles, charged back or withheld 26 payments or other things of value for which the dealer is 27 otherwise eligible under a sales promotion, program, or 28 contest, or prevented the motor vehicle dealer from 29 participating in any promotion, program, or contest for 30 selling a motor vehicle to a customer who was present at the 31 dealership and the motor vehicle dealer did not know or should 5 File original & 9 copies 04/12/01 hgr0003 04:37 pm 01239-jo -774057
HOUSE AMENDMENT Bill No. HB 1239 Amendment No. 01S (for drafter's use only) 1 not have reasonably known that the vehicle would be shipped to 2 a foreign country. There will be a rebuttable presumption 3 that the dealer did not know or should not have reasonably 4 known that the vehicle would be shipped to a foreign country 5 if the vehicle is titled in one of the fifty United States. 6 (27) Notwithstanding the terms of any franchise 7 agreement, the applicant or licensee has failed or refused to 8 indemnify and hold harmless any motor vehicle dealer against 9 any judgment for damages, or settlements agreed to by the 10 applicant or licensee, including, without limitation, court 11 costs and reasonable attorneys fees, arising out of 12 complaints, claims, or lawsuits, including, without 13 limitation, strict liability, negligence, misrepresentation, 14 express or implied warranty, or revocation or rescission of 15 acceptance of the sale of a motor vehicle, to the extent the 16 judgment or settlement relates to the alleged negligent 17 manufacture, design, or assembly of motor vehicles, parts, or 18 accessories. Nothing herein shall obviate the licensee's 19 obligations pursuant to chapter 681. 20 (28) The applicant or licensee has published, 21 disclosed, or otherwise made available in any form information 22 provided by a motor vehicle dealer with respect to sales 23 prices of motor vehicles or profit per motor vehicle sold. 24 Other confidential information provided by motor vehicle 25 dealers shall not be published, disclosed, or otherwise made 26 available except in composite form. However, this information 27 may be disclosed with the written consent of the dealer, after 28 timely notice to an affected dealer, or in response to a 29 subpoena or order of the Department, a court or a lawful 30 tribunal, or introduced into evidence in such a proceeding, 31 after timely notice to an affected dealer. 6 File original & 9 copies 04/12/01 hgr0003 04:37 pm 01239-jo -774057
HOUSE AMENDMENT Bill No. HB 1239 Amendment No. 01S (for drafter's use only) 1 (29) The applicant or licensee has failed to reimburse 2 a motor vehicle dealer in full for the reasonable cost of 3 providing a loaner vehicle to any customer who is having a 4 vehicle serviced at the motor vehicle dealer, if a loaner is 5 required by the applicant or licensee, or a loaner is 6 expressly part of an applicant or licensee's customer 7 satisfaction index or computation. 8 (30) The applicant or licensee has conducted or 9 threatened to conduct any audit of a motor vehicle dealer in 10 order to coerce or attempt to coerce the dealer to forego any 11 rights granted to the dealer under ss. 320.60-320.70 or under 12 the agreement between the licensee and the motor vehicle 13 dealer. Nothing in this section shall prohibit an applicant 14 or licensee from reasonably and periodically auditing a dealer 15 to determine the validity of paid claims. 16 (31) From and after the effective date of enactment of 17 this provision, the applicant or licensee has offered to any 18 motor vehicle dealer a franchise agreement that: 19 (a) Requires that a motor vehicle dealer bring an 20 administrative or legal action in a venue outside of this 21 state, or 22 (b) Requires that any arbitration, mediation, or other 23 legal proceeding be conducted outside of this state, or 24 (c) Requires that a law of a state other than Florida 25 be applied to any legal proceeding between a motor vehicle 26 dealer and a licensee. 27 28 The licensee shall, at the time it offers the franchise 29 agreement to a motor vehicle dealer, provide the motor vehicle 30 dealer with a copy of the licensee's arbitration and/or 31 mediation rules and procedures, including the composition of 7 File original & 9 copies 04/12/01 hgr0003 04:37 pm 01239-jo -774057
HOUSE AMENDMENT Bill No. HB 1239 Amendment No. 01S (for drafter's use only) 1 the finder(s) of fact. 2 (32) Notwithstanding the terms of any franchise 3 agreement, the applicant or licensee has rejected or withheld 4 approval of any proposed transfer in violation of s. 320.643 5 or a proposed change of executive management in violation of 6 s. 320.644. 7 Section 4. Section 320.641, Florida Statutes, is 8 amended and a new subsection (8) is added to read: 9 320.641 Discontinuations, cancellations, nonrenewals, 10 modifications, and replacementUnfair cancellation of franchise 11 agreements.-- 12 (1)(a) An applicant or licensee shall give written 13 notice to the motor vehicle dealer and the department of the 14 licensee's intention to discontinue, cancel, or fail to renew 15 a franchise agreement or of the licensee's intention to modify 16 a franchise or replace a franchise with a succeeding 17 franchise, which modification or replacement will adversely 18 alter the rights or obligations of a motor vehicle dealer 19 under an existing franchise agreement or will substantially 20 impair the sales, service obligations, or investment of the 21 motor vehicle dealer, at least 90 days before the effective 22 date thereof, together with the specific grounds for such 23 action. 24 (b) The failure by the licensee to comply with the 25 90-day notice period and procedure prescribed herein shall 26 render voidable, at the option of the motor vehicle dealer, 27 any discontinuation, cancellation, nonrenewal, modification, 28 or replacement of any franchise agreement. Designation of a 29 franchise agreement at a specific location as a "nondesignated 30 point" shall be deemed an evasion of this section and 31 constitutes an unfair cancellation. 8 File original & 9 copies 04/12/01 hgr0003 04:37 pm 01239-jo -774057
HOUSE AMENDMENT Bill No. HB 1239 Amendment No. 01S (for drafter's use only) 1 (2) Franchise agreements are deemed to be continuing 2 unless the applicant or licensee has notified the department 3 of the discontinuation of, cancellation of, failure to renew, 4 modification of, or replacement of the agreement of any of its 5 motor vehicle dealers; and annual renewal of the license 6 provided for under ss. 320.60-320.70 is not necessary for any 7 cause of action against the licensee. 8 (3) Any motor vehicle dealer who receives a notice of 9 intent to discontinue, cancel, not renew, modify, or replace 10 whose franchise agreement is discontinued, canceled, not 11 renewed, modified, or replaced may, within the 90-day notice 12 period, file a petition or complaint for a determination of 13 whether such action is an unfair or prohibited 14 discontinuation, cancellation, nonrenewal, modification, or 15 replacement. Agreements and certificates of appointment shall 16 continue in effect until final determination of the issues 17 raised in such petition or complaint by the motor vehicle 18 dealer. A discontinuation, cancellation, or nonrenewal of a 19 franchise agreement is unfair if it is not clearly permitted 20 by the franchise agreement; is not undertaken in good faith; 21 is not undertaken for good cause; or is based on an alleged 22 breach of the franchise agreement which is not in fact a 23 material and substantial breach; or, if the grounds relied 24 upon for termination, cancellation, or nonrenewal have not 25 been applied in a uniform and consistent manner by the 26 licensee. A modification or replacement is unfair if it is 27 not clearly permitted by the franchise agreement; is not 28 undertaken in good faith; or is not undertaken for good cause. 29 The applicant or licensee shall have burden of proof that such 30 action is fair and not prohibited. 31 (4) Notwithstanding any other provision of this 9 File original & 9 copies 04/12/01 hgr0003 04:37 pm 01239-jo -774057
HOUSE AMENDMENT Bill No. HB 1239 Amendment No. 01S (for drafter's use only) 1 section, the failure of a motor vehicle dealer to be engaged 2 in business with the public for 10 consecutive business days 3 constitutes abandonment by the dealer of his or her franchise 4 agreement. If any motor vehicle dealer abandons his or her 5 franchise agreement, he or she has no cause of action under 6 this section. For the purpose of this section, a dealer shall 7 be considered to be engaged in business with the public if a 8 sales and service facility is open and is performing such 9 services 8 hours a day, 5 days a week, excluding holidays. 10 However, it will not be considered abandonment if such failure 11 to engage in business is due to an act of God, a work 12 stoppage, or a delay due to a strike or labor difficulty, a 13 freight embargo, or other cause over which the motor vehicle 14 dealer has no control, including any violation of ss. 15 320.60-320.70. 16 (5) Notwithstanding any other provision of this 17 section, if a motor vehicle dealer has abandoned his or her 18 franchise agreement as provided in subsection (4), the 19 licensee may give written notice to the dealer and the 20 department of the licensee's intention to discontinue, cancel, 21 or fail to renew the franchise agreement with the dealer at 22 least 15 days before the effective date thereof, specifying 23 the grounds for such action. A motor vehicle dealer receiving 24 such notice may file a petition or complaint for determination 25 of whether in fact there has been an abandonment of the 26 franchise. 27 (6) If the complainant motor vehicle dealer prevails, 28 he or she shall have a cause of action against the licensee 29 for reasonable attorneys' fees and costs incurred by him or 30 her in such proceeding, and he or she shall have a cause of 31 action under s. 320.697. 10 File original & 9 copies 04/12/01 hgr0003 04:37 pm 01239-jo -774057
HOUSE AMENDMENT Bill No. HB 1239 Amendment No. 01S (for drafter's use only) 1 (7) Except as provided in s. 320.643, no replacement 2 motor vehicle dealer shall be named for this point or location 3 to engage in business and the franchise agreement shall remain 4 in effect until a final judgment is entered after all appeals 5 are exhausted, provided that, when a motor vehicle dealer 6 appeals a decision upholding a discontinuation, cancellation, 7 or nonrenewal based upon abandonment or revocation of the 8 dealer's license pursuant to s. 320.27, as lawful reasons for 9 such discontinuation, cancellation, or nonrenewal, the 10 franchise agreement shall remain in effect pending exhaustion 11 of all appeals only if the motor vehicle dealer establishes a 12 likelihood of success on appeal and that the public interest 13 will not be harmed by keeping the franchise agreement in 14 effect pending entry of final judgment after such appeal. 15 prior to the final adjudication by the department on the 16 petition or complaint and the exhaustion of all appellate 17 remedies by the canceled or discontinued dealer, if a stay is 18 issued by either the department or an appellate court. 19 (8) If a transfer is proposed pursuant to s. 20 320.643(1) or (2) after a notice of intent to discontinue, 21 cancel, or not renew a franchise agreement is received but, 22 prior to the final determination, including exhaustion of all 23 appellate remedies of a motor vehicle dealer's complaint or 24 petition contesting such action, the termination proceedings 25 shall be stayed, without bond, during the period that the 26 transfer is being reviewed by the licensee pursuant to 27 320.643., During the period that the transfer is being 28 reviewed by the licensee, pursuant to s. 320.643, the 29 franchise agreement shall remain in full force and effect, and 30 the motor vehicle dealer shall retain all rights and remedies 31 pursuant to the terms and conditions of the franchise 11 File original & 9 copies 04/12/01 hgr0003 04:37 pm 01239-jo -774057
HOUSE AMENDMENT Bill No. HB 1239 Amendment No. 01S (for drafter's use only) 1 agreement and applicable law, including all rights of transfer 2 until such time as the licensee has accepted or rejected the 3 proposed tranfer. If the proposed transfer is rejected, the 4 motor vehicle dealer shall retain all of its rights pursuant 5 to s. 320.643 to an administrative determination as to whether 6 the licensee's rejection is in compliance with the provisions 7 of s. 320.643, and during the pendency of any such 8 administrative proceeding, and any related appellate 9 proceedings, the termination proceedings shall remain stayed 10 without bond, the franchise agreement shall remain in full 11 force and effect and the motor vehicle dealer shall retain all 12 rights and remedies pursuant to the terms and conditions of 13 the franchise agreement and applicable law, including all 14 rights of transfer. If a transfer is approved by the licensee 15 or mandated by law, the termination proceedings shall be 16 dismissed with prejudice as moot. The subsection (8) applies 17 only to the first two proposed transfers pursuant to s. 18 320.643(1) or (2) after notice of intent to discontinue, 19 cancel, or not renew is received. 20 Section 5. Section 320.643, Florida Statutes, is 21 amended to read: 22 320.643 Transfer, assignment, or sale of franchise 23 agreements.-- 24 (1) A motor vehicle dealer shall not transfer, assign, 25 or sell a franchise agreement to another person unless the 26 dealer first notifies the licensee of the dealer's decision to 27 make such transfer, by written notice setting forth the 28 prospective transferee's name, address, financial 29 qualification, and business experience during the previous 5 30 years. The licensee shall, in writing, within 60 days after 31 receipt of such notice, inform the dealer either of the 12 File original & 9 copies 04/12/01 hgr0003 04:37 pm 01239-jo -774057
HOUSE AMENDMENT Bill No. HB 1239 Amendment No. 01S (for drafter's use only) 1 licensee's approval of the transfer, assignment, or sale or of 2 the unacceptability of the proposed transferee, setting forth 3 the material reasons for the rejection. If the licensee does 4 not so inform the dealer within the 60-day period, its 5 approval of the proposed transfer is deemed granted. No such 6 transfer, assignment, or sale will be valid unless the 7 transferee agrees in writing to comply with all requirements 8 of the franchise then in effect. Notwithstanding the terms of 9 any franchise agreement, the acceptance by the licensee of the 10 proposed transferee shall not be unreasonably withheld. For 11 the purposes of this section, the refusal by the licensee to 12 accept a proposed transferee who is of good moral character 13 and who otherwise meets the written, reasonable, and uniformly 14 applied standards or qualifications, if any, of the licensee 15 relating to financial qualifications of the transferee and the 16 business experience of the transferee or the transferee's 17 executive management required by the licensee of its motor 18 vehicle dealers is presumed to be unreasonable. A motor 19 vehicle dealer whose proposed sale is rejected licensee who 20 receives such notice may, within 60 days following such 21 receipt of such rejection, file with the department a verified 22 complaint for a determination that the proposed transferee has 23 been rejected in violation of is not a person qualified to be 24 a transferee under this section. The licensee has the burden 25 of proof with respect to all issues raised by such verified 26 complaint. The department shall determine, and enter an order 27 providing, that the proposed transferee is either qualified or 28 is not and cannot be qualified for specified reasons, or the 29 order may provide the conditions under which a proposed 30 transferee would be qualified. If the licensee fails to file 31 such a response to the motor vehicle dealer's verified 13 File original & 9 copies 04/12/01 hgr0003 04:37 pm 01239-jo -774057
HOUSE AMENDMENT Bill No. HB 1239 Amendment No. 01S (for drafter's use only) 1 complaint within such 3060-days after receipt of the 2 complaint, unless the parties agree inwriting to an extension, 3 period or if the department, after a hearing, dismisses the 4 complaint or renders a decision other than one disqualifying 5 the proposed transferee, the franchise agreement between the 6 motor vehicle dealer and the licensee shall be deemed amended 7 to incorporate such transfer or amended in accordance with the 8 determination and order rendered, effective upon compliance by 9 the proposed transferee with any conditions set forth in the 10 determination or order. 11 (2)(a) Notwithstanding the terms of any franchise 12 agreement, a licensee shall not, by contract or otherwise, 13 fail or refuse to give effect to, prevent, prohibit, or 14 penalize, or attempt to refuse to give effect to, prevent, 15 prohibit, or penalize, any motor vehicle dealer or any 16 proprietor, partner, stockholder, owner, or other person who 17 holds or otherwise owns an interest therein from selling, 18 assigning, transferring, alienating, or otherwise disposing 19 of, in whole or in part, the equity interest of any of them in 20 such motor vehicle dealer to any other person or persons, 21 including a corporation established or existing for the 22 purpose of owning or holding the stock or ownership interests 23 of other entities, unless the licensee proves at a hearing 24 pursuant to this section that such sale, transfer, alienation, 25 or other disposition is to a person who is not, or whose 26 controlling executive management is not, of good moral 27 character. A motor vehicle dealer, or any proprietor, 28 partner, stockholder, owner, or other person who holds or 29 otherwise owns an interest in the motor vehicle dealer, who 30 desires to sell, assign, transfer, alienate, or otherwise 31 dispose of any interest in such motor vehicle dealer shall 14 File original & 9 copies 04/12/01 hgr0003 04:37 pm 01239-jo -774057
HOUSE AMENDMENT Bill No. HB 1239 Amendment No. 01S (for drafter's use only) 1 notify, or cause the proposed transferee to so notify, the 2 licensee, in writing, of the identity and address of the 3 proposed transferee. A licensee who receives such notice may, 4 within 60 days following such receipt, notify the motor 5 vehicle dealer in writing file with the department a verified 6 complaint for a determination that the proposed transferee is 7 not a person qualified to be a transferee under this section 8 and setting forth the material reasons for such rejection. 9 Failure of the licensee to notify the motor vehicle dealer 10 within the 60-day period of such rejection shall be deemed an 11 approval of the transfer. Any person whose proposed sale of 12 stock is rejected may file within 60 days of receipt of such 13 rejection a complaint with the Department alleging that the 14 rejection was in violation of the law or the franchise 15 agreement. The licensee has the burden of proof with respect 16 to all issues raised by such verified complaint. The 17 department shall determine, and enter an order providing, that 18 the proposed transferee either is qualified or is not and 19 cannot be qualified for specified reasons; or the order may 20 prov ide the conditions under which a proposed transferee 21 would be qualified. If the licensee fails to file a response 22 to the motor vehicle dealer's complaint within 30 days of 23 receipt of the complaint, unless the parties agree in writing 24 to an extension, or if the licensee fails to file such 25 verified complaint within such 60-day period or if the 26 department, after a hearing, dismisses the complaint or 27 renders a decision on the complaint other than one 28 disqualifying the proposed transferee, the transfer shall be 29 deemed approved franchise agreement between the motor vehicle 30 dealer and the licensee shall be deemed amended to incorporate 31 such transfer or amended in accordance with the determination 15 File original & 9 copies 04/12/01 hgr0003 04:37 pm 01239-jo -774057
HOUSE AMENDMENT Bill No. HB 1239 Amendment No. 01S (for drafter's use only) 1 and order rendered, effective upon compliance by the proposed 2 transferee with any conditions set forth in the determination 3 or order. 4 (b) During the pendency of any such hearing, the 5 franchise agreement of the motor vehicle dealer shall continue 6 in effect in accordance with its terms. The department shall 7 expedite any determination requested under this section. 8 (3) Notwithstanding the terms of any franchise 9 agreement, the acceptance by the licensee of the proposed 10 transferee shall not be unreasonably withheld. For the 11 purposes of this section, the refusal by the licensee to 12 accept a proposed transferee who satisfies the criteria set 13 forth in subsection (1) or (2) is presumed to be unreasonable. 14 Section 6. Section 320.645, Florida Statutes, is 15 amended to read: 16 320.645 Restriction upon ownership of dealership by 17 licensee.-- 18 (1) No licensee, including a manufacturer or agent of 19 a manufacturer, or any parent, subsidiary, common entity, or 20 officer or representative of the licensee shall own or 21 operate, either directly or indirectly, a motor vehicle 22 dealership in this state for the sale or service of motor 23 vehicles which have been or are offered for sale under a 24 franchise agreement with a motor vehicle dealer in this state. 25 A licensee may not be issued a motor vehicle dealer license 26 pursuant to s. 320.27. However, no such licensee will be 27 deemed to be in violation of this section: 28 (a) When operating a motor vehicle dealership for a 29 temporary period, not to exceed 1 year, during the transition 30 from one owner of the motor vehicle dealership to another; 31 (b) When operating a motor vehicle dealership 16 File original & 9 copies 04/12/01 hgr0003 04:37 pm 01239-jo -774057
HOUSE AMENDMENT Bill No. HB 1239 Amendment No. 01S (for drafter's use only) 1 temporarily for a reasonable period for the exclusive purpose 2 of broadening the diversity of its dealer body and enhancing 3 opportunities for qualified persons who are part of a group 4 that has historically been underrepresented in its dealer 5 body, or for other qualified persons who the licensee deems 6 lack the resources to purchase or capitalize the dealership 7 outright, not to exceed 1 year, or in a bona fide relationship 8 with an independent person, other than a licensee or its agent 9 or affiliate, who has made a significant investment that is 10 subject to loss in the dealership within the dealership's 11 first year of operation and who can reasonably expect to 12 acquire full ownership of the dealership on reasonable terms 13 and conditions; or 14 (c) If the department determines, after a hearing on 15 the matter, pursuant to chapter 120, at the request of any 16 person, that there is no independent person available in the 17 community or territory to own and operate the motor vehicle 18 dealership in a manner consistent with the public interest. 19 20 In any such case, the licensee must continue to make the motor 21 vehicle dealership available for sale to an independent person 22 at a fair and reasonable price. Approval of the sale of such a 23 motor vehicle dealership to a proposed motor vehicle dealer 24 shall not be unreasonably withheld. 25 (2) As used in this section, the term: 26 (a) "Independent person" is a person who is not an 27 officer, director, or employee of the licensee. 28 (b) "Reasonable terms and conditions" requires that 29 profits from the dealership are reasonably expected to be 30 sufficient to allow full ownership of the dealership by the 31 independent person within a reasonable time period not to 17 File original & 9 copies 04/12/01 hgr0003 04:37 pm 01239-jo -774057
HOUSE AMENDMENT Bill No. HB 1239 Amendment No. 01S (for drafter's use only) 1 exceed 10 years, which time period may be extended if there is 2 a reasonable basis to do so and is not being sought to evade 3 the purpose of this section; that the independent person has 4 sufficient control to permit acquisition of ownership; and 5 that the relationship cannot be terminated solely to avoid 6 full ownership. The terms and conditions are not reasonable 7 if they preclude the independent person from an expedited 8 purchase of the dealership using a monetary source other than 9 profits from the dealership's operation; provided, however, 10 that the independent person must pay or make an agreement to 11 pay to the licensee any and all reasonable prepayment charges 12 and costs, including all unrecouped restored losses, 13 associated with the expedited purchase of the dealership. For 14 the purpose of this section, unrecouped restored losses are 15 monies that the manufacturer has provided to the dealership to 16 restore losses of the dealership that the manufacturer has not 17 been paid back through profits of the dealership. 18 (c) "Significant investment" means a reasonable 19 amount, considering the reasonable capital requirements of the 20 dealership, acquired and obtained from sources other than the 21 licensee or any of its affiliates and not encumbered by the 22 person's interest in the dealership. 23 (3) Nothing in this section shall prohibit, limit, 24 restrict, or impose conditions on: 25 (a) The business activities, including, without 26 limitation, the dealings with motor vehicle manufacturers and 27 their representatives and affiliates, of any person that is 28 primarily engaged in the business of short term not to exceed 29 12 months rental of motor vehicles and industrial and 30 construction equipment and activities incidental to that 31 business, provided that: 18 File original & 9 copies 04/12/01 hgr0003 04:37 pm 01239-jo -774057
HOUSE AMENDMENT Bill No. HB 1239 Amendment No. 01S (for drafter's use only) 1 1. Any motor vehicles sold by such person are limited 2 to used motor vehicles that have been previously used 3 exclusively and regularly by such person in the conduct of its 4 rental business and used motor vehicles traded in on motor 5 vehicles sold by such person; 6 2. Warranty repairs performed under any manufacturer's 7 new vehicle warranty by such person on motor vehicles are 8 limited to those motor vehicles that it owns. As to 9 previously owned vehicles, warranty repairs can be performed 10 only if pursuant to a motor vehicle service agreement as 11 defined in chapter 634, part I, issued by such person or an 12 express warranty issued by such person on the retail sale of 13 those vehicles previously owned; and 14 3. Motor vehicle financing provided by such person to 15 retail consumers for motor vehicles is limited to used motor 16 vehicles sold by such person in the conduct of its business; 17 or 18 (b) The direct or indirect ownership, affiliation or 19 control of a person described in paragraph (a) of this 20 subsection. 21 (4) This section does not apply to any dealership that 22 is owned, controlled, or operated by a licensee on July 1, 23 2000. 24 (2) This section shall not be construed to prohibit 25 any licensee from owning or operating a motor vehicle 26 dealership in this state if such dealership was owned or 27 operated by the licensee on May 31, 1984. 28 Section 7. Subsection (2) of section 320.699, Florida 29 Statutes, is amended to read: 30 320.699 Administrative hearings and adjudications; 31 procedure.-- 19 File original & 9 copies 04/12/01 hgr0003 04:37 pm 01239-jo -774057
HOUSE AMENDMENT Bill No. HB 1239 Amendment No. 01S (for drafter's use only) 1 (2) If a written objection or notice of protest is 2 filed with the department under paragraph (1)(b), a hearing 3 shall be held not sooner than 180 days nor later than 240 days 4 from within 180 days of the date of filing of the first 5 objection or notice of protest, unless the time is extended by 6 the Administrative Law Judge. This subsection shall govern 7 the schedule of hearings in lieu of any other provision of law 8 with respect to administrative hearings conducted by the 9 Department of Highway Safety and Motor Vehicles or the 10 Division of Administrative Hearings, including performance 11 standards of state agencies, which may be included in current 12 and future appropriations acts. hearing officer for good cause 13 shown. If a hearing is not scheduled within said time, any 14 party may request such hearing which shall be held forthwith 15 by the hearing officer. 16 Section 8. Section 320.6991, Florida Statutes, is 17 created to read: 18 Section 320.6991 Severability.--If a provision of ss. 19 320.60-320.70 or its application to any person or circumstance 20 is held invalid, the invalidity does not affect other 21 provisions or applications of ss. 320.60-320.70 that can be 22 given effect without the invalid provision or application, and 23 to this end the provisions of 320.60-320.70 are severable. 24 Section 9. This act shall take effect July 1, 2001. 25 26 27 ================ T I T L E A M E N D M E N T =============== 28 And the title is amended as follows: 29 On page 1, line 10 through page 2, line 11 30 remove from the title of the bill: all of said lines 31 20 File original & 9 copies 04/12/01 hgr0003 04:37 pm 01239-jo -774057
HOUSE AMENDMENT Bill No. HB 1239 Amendment No. 01S (for drafter's use only) 1 and insert in lieu thereof: 2 An act relating to motor vehicle dealer 3 franchise agreements; amending s. 320.60, F.S.; 4 revising definitions used in ss. 320.61-320.70, 5 F.S.; amending s. 320.61, F.S.; amending 6 procedures to be followed when a complaint of 7 unfair cancellation of a dealer agreement has 8 been made by a motor vehicle dealer against a 9 licensee; defining the term "final decision"; 10 amending s. 320.64, F.S.; providing penalties 11 and remedies for violations; deleting 12 subsections (13) and (16); amending subsection 13 20; creating subsections (22) through (33) and 14 renumbering sections; amending s. 320.641, 15 F.S.; providing procedures relating to 16 discontinuations, cancellations, nonrenewals, 17 modifications, and replacements of franchise 18 agreements; amending s. 320.642, F.S.; amending 19 criteria for establishing an additional motor 20 vehicle dealer who deals in a specific 21 line-make in an area that is already served by 22 another such dealer; amending s. 320.643, F.S.; 23 amending provisions relating to the transfer, 24 assignment, or sale of franchise agreements; 25 amending s. 320.645, F.S.; amending provisions 26 relating to restrictions upon a licensee's 27 owning a dealership; providing for "dealer 28 development arrangements"; providing 29 exceptions; amending s. 320.699, F.S.; amending 30 procedures for administrative hearings; 31 creating s. 320.6991; providing for 21 File original & 9 copies 04/12/01 hgr0003 04:37 pm 01239-jo -774057
HOUSE AMENDMENT Bill No. HB 1239 Amendment No. 01S (for drafter's use only) 1 severability; providing an effective date. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 22 File original & 9 copies 04/12/01 hgr0003 04:37 pm 01239-jo -774057