House Bill hb1647

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    Florida House of Representatives - 2001                HB 1647

        By Representative Bense






  1                      A bill to be entitled

  2         An act relating to motor vehicles dealers;

  3         providing definitions; prohibiting certain

  4         unfair or deceptive acts by such dealers;

  5         providing for the award of attorney's fees and

  6         court costs; repealing s. 320.27(9)(n), F.S.;

  7         relating to licensure sanctions for dealers who

  8         fail to disclose certain new vehicle damages to

  9         a purchaser; providing application; providing

10         an effective date.

11

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

13

14         Section 1.  Definitions.--As used in this act, the

15  term:

16         (1)  "Customer" includes a customer's designated agent.

17         (2)  "Dealer" means a motor vehicle dealer as defined

18  in section 320.27, Florida Statutes, but does not include a

19  motor vehicle auction as defined in section 320.27(1)(c)4.,

20  Florida Statutes.

21         (3)  "Replacement item" means a tire, bumper, bumper

22  fascia, glass, in-dashboard equipment, seat or upholstery

23  cover or trim, exterior illumination unit, grill, sunroof,

24  external mirror, and external body cladding. The replacement

25  of up to three of these items does not constitute repair of

26  damage if each item is replaced because of a product defect or

27  damaged due to vandalism while the vehicle is under the

28  control of the dealer and the items are replaced with original

29  manufacturer equipment, unless an item is replaced due to a

30  crash, collision, or accident.

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    Florida House of Representatives - 2001                HB 1647

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  1         (4)  "Threshold amount" means 3 percent of the

  2  manufacturer's suggested retail price of a motor vehicle or

  3  $650, whichever is less.

  4         (5)  "Vehicle" means a new motor vehicle as defined in

  5  section 320.60(10), Florida Statutes.

  6         Section 2.  (1)  It is an unfair or deceptive act or

  7  practice, actionable under the Florida Deceptive and Unfair

  8  Trade Practices Act, for a dealer to:

  9         (a)  Represent directly or indirectly that a motor

10  vehicle is a factory executive vehicle or executive vehicle

11  unless such vehicle was purchased directly from the

12  manufacturer or a subsidiary of the manufacturer and the

13  vehicle was used exclusively by the manufacturer, its

14  subsidiary, or a dealer for the commercial or personal use of

15  the manufacturer's, subsidiary's, or dealer's employees.

16         (b)  Represent directly or indirectly that a vehicle is

17  a demonstrator unless the vehicle was driven by prospective

18  customers of a dealership selling the vehicle and such vehicle

19  complies with the definition of a demonstrator in section

20  320.60(11), Florida Statutes.

21         (c)  Represent the previous usage or status of a

22  vehicle to be something that it was not, or make usage or

23  status representations unless the dealer has correct

24  information regarding the history of the vehicle to support

25  the representations.

26         (d)  Represent the quality of care, regularity of

27  servicing, or general condition of a vehicle unless known by

28  the dealer to be true and supportable by material fact.

29         (e)  Represent orally or in writing that a particular

30  vehicle has not sustained structural or substantial skin

31  damage unless the statement is made in good faith and the

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    Florida House of Representatives - 2001                HB 1647

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  1  vehicle has been inspected by the dealer or his agent to

  2  determine whether the vehicle has incurred such damage.

  3         (f)  Sell a vehicle without fully and conspicuously

  4  disclosing in writing at or before the consummation of sale

  5  any warranty or guarantee terms, obligations, or conditions

  6  that the dealer or manufacturer has given to the buyer. If the

  7  warranty obligations are to be shared by the dealer and the

  8  buyer, the method of determining the percentage of repair

  9  costs to be assumed by each party must be disclosed. If the

10  dealer intends to disclaim or limit any expressed or implied

11  warranty, the disclaimer must be in writing in a conspicuous

12  manner and in laymen's terms in accordance with chapter 672,

13  Florida Statutes, and the "Magnuson-Moss Warranty - Federal

14  Trade Commission Improvement Act."

15         (g)  Provide an express or implied warranty and faith

16  to honor such warranty unless properly disclaimed pursuant to

17  paragraph (f).

18         (h)  Misrepresent warranty coverage, application

19  period, or any warranty transfer cost or conditions to a

20  customer.

21         (i)  Obtain signatures from a customer on contracts

22  that are not fully completed at the time the customer signs or

23  which do not reflect accurately the negotiations and agreement

24  between the customer and the dealer.

25         (j)  Require or accept a deposit from a prospective

26  customer prior to entering into a binding contract for the

27  purchase and sale of a vehicle unless the customer is given a

28  written receipt that states how long the dealer will hold the

29  vehicle from other sale and the amount of the deposit, and

30  clearly and conspicuously states whether and upon what

31  conditions the deposit is refundable or nonrefundable.

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    Florida House of Representatives - 2001                HB 1647

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  1         (k)  Add to the cash price of a vehicle as defined in

  2  section 520.02(6), Florida Statutes, any fee or charge other

  3  than those provided in that section and in section 3D-50.01,

  4  Florida Administrative Code. All fees or charges permitted to

  5  be added to the cash price by section 3D-50.01, Florida

  6  Administrative Code, must be fully disclosed to customers in

  7  all binding contracts concerning the vehicle's selling price.

  8         (l)  Alter or change the odometer mileage of a vehicle.

  9         (m)  Sell a vehicle without disclosing to the customer

10  the actual year and model of the vehicle.

11         (n)  File a lien against a new vehicle purchased with a

12  check unless the dealer fully discloses to the purchaser that

13  a lien will be filed if purchase is made by check and fully

14  discloses to the buyer the procedures and cost to the buyer

15  for gaining title to the vehicle after the lien is filed.

16         (o)  Increase the price of the vehicle after having

17  accepted an order of purchase or a contract from a buyer,

18  notwithstanding subsequent receipt of an official price change

19  notification. The price of a vehicle may be increased after a

20  dealer accepts an order of purchase or a contract from a buyer

21  if:

22         1.  A trade-in vehicle is reappraised because it

23  subsequently is damaged, or parts or accessories are removed;

24         2.  The price increase is caused by the addition of new

25  equipment, as required by state or federal law;

26         3.  The price increase is caused by the revaluation of

27  the U.S. dollar by the Federal Government, in the case of a

28  foreign-made vehicle;

29         4.  The price increase is caused by state or federal

30  tax rate changes; or

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    Florida House of Representatives - 2001                HB 1647

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  1         5.  Price protection is not provided by the

  2  manufacturer, importer, or distributor.

  3         (p)  Advertise the price of a vehicle unless the

  4  vehicle is identified by year, make, model, and a commonly

  5  accepted trade, brand, or style name. The advertised price

  6  must include all fees or charges that the customer shall pay,

  7  including freight or destination charge, dealer preparation

  8  charge, and charges for undercoating or rustproofing. State

  9  and local taxes, tags, registration fees, and title fees,

10  unless otherwise required by local law or standard, need not

11  be disclosed in the advertisement. When two or more dealers

12  advertise jointly, with or without participation of the

13  franchiser, the advertised price need not include fees and

14  charges that are variable among the individual dealers

15  cooperating in the advertisement, but the nature of all

16  charges that are not included in the advertised price shall be

17  disclosed in the advertisement.

18         (q)  Charge a customer for any pre-delivery service

19  required by the manufacturer, distributor, or importer for

20  which the dealer is reimbursed by the manufacturer,

21  distributor, or importer.

22         (r)  Charge a customer for any pre-delivery service

23  without having printed on all documents that include a line

24  item for pre-delivery service the following disclosure: "This

25  charge represents costs and profit to the dealer for items

26  such as inspecting, cleaning, and adjusting vehicles, and

27  preparing documents related to the sale."

28         (s)  Fail to disclose damage to a new motor vehicle, of

29  which the dealer had actual knowledge, if the dealer's actual

30  cost of repairs exceeds the threshold amount, excluding

31  replacement items.

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    Florida House of Representatives - 2001                HB 1647

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  1         (2)(a)  If a vehicle is available for physical

  2  inspection by a potential purchaser, the dealer may attach a

  3  conspicuous label to the window specifying any charge for

  4  pre-delivery services and describing the charges as

  5  pre-delivery services, delivery and handling, dealer

  6  preparation, or in similar terms the dealer's charge for each

  7  dealer installed option, and a total price line.

  8         (b)  A dealer that discloses the pre-delivery service

  9  charge as described in paragraph (a) may not add an additional

10  charge for pre-delivery service on any sales documents.

11         Section 3.  (1)  In any civil litigation resulting from

12  an act or practice involving a violation of this act, the

13  prevailing party, after judgment in the trial court and

14  exhaustion of any appeal, may receive reasonable attorney's

15  fees and costs from the nonprevailing party.

16         (2)  The attorney for the prevailing party shall submit

17  a sworn affidavit of the time spent on the case and costs

18  incurred for all the motions, hearings, and appeals to the

19  trial judge who presided over the civil case.

20         (3)  The trial judge may award the prevailing party

21  reasonable costs incurred in the action plus a reasonable

22  legal fee for the hours spent as sworn to in an affidavit. In

23  evaluating the reasonableness of the fee, the trial judge

24  shall take into consideration the amount of compensatory

25  damages in relation to the time spent.

26         (4)  Any award of attorney's fees or costs shall become

27  a part of the judgement and subject to execution pursuant to

28  law.

29         (5)  In any civil litigation initiated by the enforcing

30  authority, the court may award to the prevailing party

31  reasonable attorney's fees and costs if the court finds a

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    Florida House of Representatives - 2001                HB 1647

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  1  complete absence of a justifiable issue of law or fact raised

  2  by the losing party or if the court finds bad faith on the

  3  part of the losing party.

  4         (6)  In any administrative proceeding or other

  5  nonjudicial action initiated by an enforcing authority, the

  6  attorney for the enforcing authority may certify by sworn

  7  affidavit the number of hours and cost thereof to the

  8  enforcing authority for the time spent in the investigation

  9  and litigation of the case, plus cost reasonably incurred in

10  the action. Payment to the enforcing authority of such costs

11  may be made, by stipulation of the parties, a part of the

12  final order or decree disposing of the matter. The affidavit

13  must be attached to and becomes a part of such order.

14         Section 4.  Paragraph (n) of subsection (9) of section

15  320.27, Florida Statutes, is repealed.

16         Section 5.  This act applies to any vehicle sold after

17  October 1, 2001.

18         Section 6.  This act shall take effect October 1, 2001.

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20            *****************************************

21                          SENATE SUMMARY

22    Prohibits certain acts by a motor vehicle dealer which
      are defined as unfair or deceptive acts and provides for
23    the award of attorney's fees and court costs in actions
      to enforce these provisions. Repeals a provision that
24    provides for licensure sanctions of motor vehicle dealers
      who fail to disclose certain damage to new cars. (See
25    bill for details.)

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