Senate Bill sb2708er

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    2003 Legislature                 CS for SB 2708, 1st Engrossed



  1                                 

  2         An act relating to motor vehicle dealers;

  3         amending s. 320.60, F.S.; revising definitions;

  4         defining "service"; amending s. 320.64, F.S.;

  5         prohibiting certain acts by licensee or

  6         applicant; providing for penalties, liability,

  7         and remedies for violation; amending s.

  8         320.642, F.S.; revising provisions for evidence

  9         to be considered by the Department of Highway

10         Safety and Motor Vehicles in making certain

11         determinations of representation by preexisting

12         dealers; providing criteria and procedures for

13         protest of proposed addition or relocation of

14         service-only dealership; requiring license to

15         permit service only in certain circumstances;

16         amending s. 320.643, F.S.; revising criteria

17         and procedures for transfer, sale, or disposal

18         of franchise agreements and acceptance or

19         rejection by the licensee of such transfer,

20         sale, or disposal; prohibiting certain acts by

21         a licensee; amending s. 320.644, F.S.; defining

22         "executive management"; revising criteria and

23         procedures for change of executive management

24         of motor vehicle dealership and acceptance or

25         rejection by the licensee of such change;

26         prohibiting certain acts by licensee; amending

27         s. 320.645, F.S.; revising restriction upon

28         ownership of dealership by licensee; amending

29         s. 501.976, F.S.; revising specifications under

30         the Florida Deceptive and Unfair Trade

31         Practices Act for representation by dealer of


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 1         vehicle as a demonstrator; deleting the

 2         requirement that a demonstrator must have been

 3         driven by a prospective customer; providing an

 4         effective date.

 5  

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

 7  

 8         Section 1.  Subsections (3), (10), and (13) of section

 9  320.60, Florida Statutes, are amended, and subsection (16) is

10  added to that section, to read:

11         320.60  Definitions for ss. 320.61-320.70.--Whenever

12  used in ss. 320.61-320.70, unless the context otherwise

13  requires, the following words and terms have the following

14  meanings:

15         (3)  "Demonstrator" means any new motor vehicle which

16  is carried on the records of the dealer as a demonstrator and

17  is used by, being inspected or driven by the dealer or his or

18  her employees, or prospective customers for the purpose of

19  demonstrating vehicle characteristics in the sale or display

20  of motor vehicles sold by the dealer.

21         (10)  "Motor vehicle" means any new automobile,

22  motorcycle, or truck, including all trucks, regardless of

23  weight, including "heavy truck" as defined in s. 320.01(10)

24  and "truck" as defined in s. 320.01(9), the equitable or legal

25  title to which has never been transferred by a manufacturer,

26  distributor, importer, or dealer to an ultimate purchaser;

27  however, when legal title is not transferred but possession of

28  a motor vehicle is transferred pursuant to a conditional sales

29  contract or lease and the conditions are not satisfied and the

30  vehicle is returned to the motor vehicle dealer, the motor

31  vehicle may be resold by the motor vehicle dealer as a new


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 1  motor vehicle, provided the selling motor vehicle dealer gives

 2  the following written notice to the purchaser: "THIS VEHICLE

 3  WAS DELIVERED TO A PREVIOUS PURCHASER." The purchaser shall

 4  sign an acknowledgment, a copy of which is kept in the selling

 5  dealer's file.

 6         (13)  "Used motor vehicle" means any motor vehicle the

 7  title to or possession of which has been transferred, at least

 8  once, by a from the person who first acquired it from the

 9  manufacturer, distributor, importer, or dealer to an ultimate

10  purchaser and which is commonly known as "secondhand" within

11  the ordinary meaning thereof.

12         (16)  "Service" means any maintenance or repair of any

13  motor vehicle or used motor vehicle that is sold or provided

14  to an owner, operator, or user pursuant to a motor vehicle

15  warranty, or any extension thereof, issued by the licensee.

16         Section 2.  Subsections (33), (34), and (35) are added

17  to section 320.64, Florida Statutes, to read:

18         320.64  Denial, suspension, or revocation of license;

19  grounds.--A license of a licensee under s. 320.61 may be

20  denied, suspended, or revoked within the entire state or at

21  any specific location or locations within the state at which

22  the applicant or licensee engages or proposes to engage in

23  business, upon proof that the section was violated with

24  sufficient frequency to establish a pattern of wrongdoing, and

25  a licensee or applicant shall be liable for claims and

26  remedies provided in ss. 320.695 and 320.697 for any violation

27  of any of the following provisions. A licensee is prohibited

28  from committing the following acts:

29         (33)  The applicant or licensee has attempted to sell

30  or lease, or has sold or leased, used motor vehicles at retail

31  of a line-make that is the subject of any franchise agreement


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 1  with a motor vehicle dealer in this state, other than trucks

 2  with a net weight of more than 8,000 pounds.

 3         (34)  The applicant or licensee, after the effective

 4  date of this subsection, has included in any franchise

 5  agreement with a motor vehicle dealer a mandatory obligation

 6  or requirement of the motor vehicle dealer to purchase, sell,

 7  or lease, or offer for purchase, sale, or lease, any quantity

 8  of used motor vehicles.

 9         (35)  The applicant or licensee has refused to assign

10  allocation earned by a motor vehicle dealer, or has refused to

11  sell motor vehicles to a motor vehicle dealer, because the

12  motor vehicle dealer has failed or refused to purchase, sell,

13  lease, or certify a certain quantity of used motor vehicles

14  prescribed by the licensee.

15  

16  A motor vehicle dealer who can demonstrate that a violation

17  of, or failure to comply with, any of the preceding provisions

18  by an applicant or licensee will or can adversely and

19  pecuniarily affect the complaining dealer, shall be entitled

20  to pursue all of the remedies, procedures, and rights of

21  recovery available under ss. 320.695 and 320.697.

22         Section 3.  Paragraph (b) of subsection (2) and

23  subsection (3) of section 320.642, Florida Statutes, are

24  amended, and subsection (6) is added to that section, to read:

25         320.642  Dealer licenses in areas previously served;

26  procedure.--

27         (2)

28         (b)  In determining whether the existing franchised

29  motor vehicle dealer or dealers are providing adequate

30  representation in the community or territory for the

31  


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    2003 Legislature                 CS for SB 2708, 1st Engrossed



 1  line-make, the department may consider evidence which may

 2  include, but is not limited to:

 3         1.  The impact of the establishment of the proposed or

 4  relocated dealer on the consumers, public interest, existing

 5  dealers, and the licensee; provided, however, that financial

 6  impact may only be considered with respect to the protesting

 7  dealer or dealers.

 8         2.  The size and permanency of investment reasonably

 9  made and reasonable obligations incurred by the existing

10  dealer or dealers to perform their obligations under the

11  dealer agreement.

12         3.  The reasonably expected market penetration of the

13  line-make motor vehicle for the community or territory

14  involved, after consideration of all factors which may affect

15  said penetration, including, but not limited to, demographic

16  factors such as age, income, education, size class preference,

17  product popularity, retail lease transactions, or other

18  factors affecting sales to consumers of the community or

19  territory.

20         4.  Any actions by the licensees in denying its

21  existing dealer or dealers of the same line-make the

22  opportunity for reasonable growth, market expansion, or

23  relocation, including the availability of line-make vehicles

24  in keeping with the reasonable expectations of the licensee in

25  providing an adequate number of dealers in the community or

26  territory.

27         5.  Any attempts by the licensee to coerce the existing

28  dealer or dealers into consenting to additional or relocated

29  franchises of the same line-make in the community or

30  territory.

31  


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 1         6.  Distance, travel time, traffic patterns, and

 2  accessibility between the existing dealer or dealers of the

 3  same line-make and the location of the proposed additional or

 4  relocated dealer.

 5         7.  Whether benefits to consumers will likely occur

 6  from the establishment or relocation of the dealership which

 7  the protesting dealer or dealers prove cannot be obtained by

 8  other geographic or demographic changes or expected changes in

 9  the community or territory.

10         8.  Whether the protesting dealer or dealers are in

11  substantial compliance with their dealer agreement.

12         9.  Whether there is adequate interbrand and intrabrand

13  competition with respect to said line-make in the community or

14  territory and adequately convenient consumer care for the

15  motor vehicles of the line-make, including the adequacy of

16  sales and service facilities.

17         10.  Whether the establishment or relocation of the

18  proposed dealership appears to be warranted and justified

19  based on economic and marketing conditions pertinent to

20  dealers competing in the community or territory, including

21  anticipated future changes.

22         11.  The volume of registrations and service business

23  transacted by the existing dealer or dealers of the same

24  line-make in the relevant community or territory of the

25  proposed dealership.

26         (3)  An existing franchised motor vehicle dealer or

27  dealers shall have standing to protest a proposed additional

28  or relocated motor vehicle dealer where the existing motor

29  vehicle dealer or dealers have a franchise agreement for the

30  same line-make vehicle to be sold or serviced by the proposed

31  additional or relocated motor vehicle dealer and are


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    2003 Legislature                 CS for SB 2708, 1st Engrossed



 1  physically located so as to meet or satisfy any of the

 2  following requirements or conditions:

 3         (a)  If the proposed additional or relocated motor

 4  vehicle dealer is to be located in a county with a population

 5  of less than 300,000 according to the most recent data of the

 6  United States Census Bureau or the data of the Bureau of

 7  Economic and Business Research of the University of Florida:

 8         1.  The proposed additional or relocated motor vehicle

 9  dealer is to be located in the area designated or described as

10  the area of responsibility, or such similarly designated area,

11  including the entire area designated as a multiple-point area,

12  in the franchise agreement or in any related document or

13  commitment with the existing motor vehicle dealer or dealers

14  of the same line-make as such agreement existed upon October

15  1, 1988;

16         2.  The existing motor vehicle dealer or dealers of the

17  same line-make have a licensed franchise location within a

18  radius of 20 miles of the location of the proposed additional

19  or relocated motor vehicle dealer; or

20         3.  Any existing motor vehicle dealer or dealers of the

21  same line-make can establish that during any 12-month period

22  of the 36-month period preceding the filing of the licensee's

23  application for the proposed dealership, such dealer or its

24  predecessor made 25 percent of its retail sales of new motor

25  vehicles to persons whose registered household addresses were

26  located within a radius of 20 miles of the location of the

27  proposed additional or relocated motor vehicle dealer;

28  provided such existing dealer is located in the same county or

29  any county contiguous to the county where the additional or

30  relocated dealer is proposed to be located.

31  


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 1         (b)  If the proposed additional or relocated motor

 2  vehicle dealer is to be located in a county with a population

 3  of more than 300,000 according to the most recent data of the

 4  United States Census Bureau or the data of the Bureau of

 5  Economic and Business Research of the University of Florida:

 6         1.  Any existing motor vehicle dealer or dealers of the

 7  same line-make have a licensed franchise location within a

 8  radius of 12.5 miles of the location of the proposed

 9  additional or relocated motor vehicle dealer; or

10         2.  Any existing motor vehicle dealer or dealers of the

11  same line-make can establish that during any 12-month period

12  of the 36-month period preceding the filing of the licensee's

13  application for the proposed dealership, such dealer or its

14  predecessor made 25 percent of its retail sales of new motor

15  vehicles to persons whose registered household addresses were

16  located within a radius of 12.5 miles of the location of the

17  proposed additional or relocated motor vehicle dealer;

18  provided such existing dealer is located in the same county or

19  any county contiguous to the county where the additional or

20  relocated dealer is proposed to be located.

21         (6)  When a proposed addition or relocation concerns a

22  dealership that performs or is to perform only service, as

23  defined in s. 320.60(16), and will not or does not sell or

24  lease new motor vehicles, as defined in s. 320.60(15), the

25  proposal shall be subject to notice and protest pursuant to

26  the provisions of this section.

27         (a)  Standing to protest the addition or relocation of

28  a service-only dealership shall be limited to those instances

29  in which the applicable mileage requirement established in

30  subparagraphs (3)(a)2. and (3)(b)1. is met.

31  


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 1         (b)  The addition or relocation of a service-only

 2  dealership shall not be subject to protest if:

 3         1.  The applicant for the service-only dealership

 4  location is an existing motor vehicle dealer of the same

 5  line-make as the proposed additional or relocated service-only

 6  dealership;

 7         2.  There is no existing dealer of the same line-make

 8  closer than the applicant to the proposed location of the

 9  additional or relocated service-only dealership; and

10         3.  The proposed location of the additional or

11  relocated service-only dealership is at least 7 miles from all

12  existing motor vehicle dealerships of the same line-make,

13  other than motor vehicle dealerships owned by the applicant.

14         (c)  In determining whether existing franchised motor

15  vehicle dealers are providing adequate representations in the

16  community or territory for the line-make in question in a

17  protest of the proposed addition or relocation of a

18  service-only dealership, the department may consider the

19  elements set forth in paragraph (2)(b), provided:

20         1.  With respect to subparagraph (2)(b)1., only the

21  impact as it relates to service may be considered;

22         2.  Subparagraph (2)(b)3. shall not be considered;

23         3.  With respect to subparagraph (2)(b)9., only service

24  facilities shall be considered; and

25         4.  With respect to subparagraph (2)(b)11., only the

26  volume of service business transacted shall be considered.

27         (d)  If an application for a service-only dealership is

28  granted, the department shall issue a license which permits

29  only service, as defined in s. 320.60(16), and does not permit

30  the selling or leasing of new motor vehicles, as defined in s.

31  320.60(15).  If a service-only dealership subsequently seeks


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 1  to sell new motor vehicles at its location, the notice and

 2  protest provisions of this section shall apply.

 3         Section 4.  Section 320.643, Florida Statutes, is

 4  amended to read:

 5         320.643  Transfer, assignment, or sale of franchise

 6  agreements.--

 7         (1)(a)  Notwithstanding the terms of any franchise

 8  agreement, a licensee shall not, by contract or otherwise,

 9  fail or refuse to give effect to, prevent, prohibit, or

10  penalize or attempt to refuse to give effect to, prohibit, or

11  penalize any motor vehicle dealer from selling, assigning,

12  transferring, alienating, or otherwise disposing of its

13  franchise agreement to any other person or persons, including

14  a corporation established or existing for the purpose of

15  owning or holding a franchise agreement, unless the licensee

16  proves at a hearing pursuant to a complaint filed by a motor

17  vehicle dealer under this section that such sale, transfer,

18  alienation, or other disposition is to a person who is not, or

19  whose controlling executive management is not, of good moral

20  character or does not meet the written, reasonable, and

21  uniformly applied standards or qualifications of the licensee

22  relating to financial qualifications of the transferee and

23  business experience of the transferee or the transferee's

24  executive management. A motor vehicle dealer who desires to

25  sell, assign, transfer, alienate, or otherwise dispose of a

26  franchise shall notify, or cause the proposed transferee to

27  notify, the licensee, in writing, setting forth the

28  prospective transferee's name, address, financial

29  qualifications, and business experience during the previous 5

30  years. A licensee who receives such notice may, within 60 days

31  following such receipt, notify the motor vehicle dealer, in


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 1  writing, that the proposed transferee is not a person

 2  qualified to be a transferee under this section and setting

 3  forth the material reasons for such rejection. Failure of the

 4  licensee to notify the motor vehicle dealer within the 60-day

 5  period of such rejection shall be deemed an approval of the

 6  transfer. No such transfer, assign, or sale shall be valid

 7  unless the transferee agrees in writing to comply with all

 8  requirements of the franchise then in effect A motor vehicle

 9  dealer shall not transfer, assign, or sell a franchise

10  agreement to another person unless the dealer first notifies

11  the licensee of the dealer's decision to make such transfer,

12  by written notice setting forth the prospective transferee's

13  name, address, financial qualification, and business

14  experience during the previous 5 years. The licensee shall, in

15  writing, within 60 days after receipt of such notice, inform

16  the dealer either of the licensee's approval of the transfer,

17  assignment, or sale or of the unacceptability of the proposed

18  transferee, setting forth the material reasons for the

19  rejection. If the licensee does not so inform the dealer

20  within the 60-day period, its approval of the proposed

21  transfer is deemed granted. No such transfer, assignment, or

22  sale will be valid unless the transferee agrees in writing to

23  comply with all requirements of the franchise then in effect.

24  For the purposes of this section, the refusal by the licensee

25  to accept a proposed transferee who is of good moral character

26  and who otherwise meets the written, reasonable, and uniformly

27  applied standards or qualifications, if any, of the licensee

28  relating to financial qualifications of the transferee and the

29  business experience of the transferee or the transferee's

30  executive management is presumed to be unreasonable.

31  


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 1         (b)  A motor vehicle dealer whose proposed sale is

 2  rejected may, within 60 days following such receipt of such

 3  rejection, file with the department a complaint for a

 4  determination that the proposed transferee has been rejected

 5  in violation of this section. The licensee has the burden of

 6  proof with respect to all issues raised by such complaint. The

 7  department shall determine, and enter an order providing, that

 8  the proposed transferee is either qualified or is not and

 9  cannot be qualified for specified reasons, or the order may

10  provide the conditions under which a proposed transferee would

11  be qualified. If the licensee fails to file such a response to

12  the motor vehicle dealer's complaint within 30 days after

13  receipt of the complaint, unless the parties agree in writing

14  to an extension, or if the department, after a hearing,

15  renders a decision other than one disqualifying the proposed

16  transferee, the franchise agreement between the motor vehicle

17  dealer and the licensee shall be deemed amended to incorporate

18  such transfer or amended in accordance with the determination

19  and order rendered, effective upon compliance by the proposed

20  transferee with any conditions set forth in the determination

21  or order.

22         (2)(a)  Notwithstanding the terms of any franchise

23  agreement, a licensee shall not, by contract or otherwise,

24  fail or refuse to give effect to, prevent, prohibit, or

25  penalize, or attempt to refuse to give effect to, prevent,

26  prohibit, or penalize, any motor vehicle dealer or any

27  proprietor, partner, stockholder, owner, or other person who

28  holds or otherwise owns an interest therein from selling,

29  assigning, transferring, alienating, or otherwise disposing

30  of, in whole or in part, the equity interest of any of them in

31  such motor vehicle dealer to any other person or persons,


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 1  including a corporation established or existing for the

 2  purpose of owning or holding the stock or ownership interests

 3  of other entities, unless the licensee proves at a hearing

 4  pursuant to a complaint filed by a motor vehicle dealer under

 5  this section that such sale, transfer, alienation, or other

 6  disposition is to a person who is not, or whose controlling

 7  executive management is not, of good moral character. A motor

 8  vehicle dealer, or any proprietor, partner, stockholder,

 9  owner, or other person who holds or otherwise owns an interest

10  in the motor vehicle dealer, who desires to sell, assign,

11  transfer, alienate, or otherwise dispose of any interest in

12  such motor vehicle dealer shall notify, or cause the proposed

13  transferee to so notify, the licensee, in writing, of the

14  identity and address of the proposed transferee. A licensee

15  who receives such notice may, within 60 days following such

16  receipt, notify the motor vehicle dealer in writing that the

17  proposed transferee is not a person qualified to be a

18  transferee under this section and setting forth the material

19  reasons for such rejection. Failure of the licensee to notify

20  the motor vehicle dealer within the 60-day period of such

21  rejection shall be deemed an approval of the transfer. Any

22  person whose proposed sale of stock is rejected may file

23  within 60 days of receipt of such rejection a complaint with

24  the department alleging that the rejection was in violation of

25  the law or the franchise agreement. The licensee has the

26  burden of proof with respect to all issues raised by such

27  complaint. The department shall determine, and enter an order

28  providing, that the proposed transferee either is qualified or

29  is not and cannot be qualified for specified reasons; or the

30  order may provide the conditions under which a proposed

31  transferee would be qualified. If the licensee fails to file a


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 1  response to the motor vehicle dealer's complaint within 30

 2  days of receipt of the complaint, unless the parties agree in

 3  writing to an extension, or if the department, after a

 4  hearing, renders a decision on the complaint other than one

 5  disqualifying the proposed transferee, the transfer shall be

 6  deemed approved in accordance with the determination and order

 7  rendered, effective upon compliance by the proposed transferee

 8  with any conditions set forth in the determination or order.

 9         (3)(b)  During the pendency of any such hearing, the

10  franchise agreement of the motor vehicle dealer shall continue

11  in effect in accordance with its terms. The department shall

12  expedite any determination requested under this section.

13         (4)(3)  Notwithstanding the terms of any franchise

14  agreement, the acceptance by the licensee of the proposed

15  transferee shall not be unreasonably withheld. For the

16  purposes of this section, the refusal by the licensee to

17  accept a proposed transferee who satisfies the criteria set

18  forth in subsection (1) or subsection (2) is presumed to be

19  unreasonable.

20         (5)  It shall be a violation of this section for the

21  licensee to reject or withhold approval of a proposed transfer

22  unless the licensee can prove in any court of competent

23  jurisdiction in defense of any claim brought pursuant to s.

24  320.697 that, in fact, the rejection or withholding of

25  approval of the proposed transfer was reasonable. The

26  determination of whether such rejection or withholding was

27  reasonable shall be based on an objective standard. Alleging

28  the permitted statutory grounds by the licensee in the written

29  rejection of the proposed transfer shall not protect the

30  licensee from liability for violating this section.

31  


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 1         Section 5.  Section 320.644, Florida Statutes, is

 2  amended to read:

 3         320.644  Change of executive management control;

 4  objection by licensee; procedure.--

 5         (1)  Notwithstanding the terms of any franchise

 6  agreement, a licensee shall not, by contract or otherwise,

 7  fail or refuse to give effect to, prevent, prohibit, or

 8  penalize, or attempt to refuse to give effect to, prevent,

 9  prohibit, or penalize any motor vehicle dealer from changing

10  its executive management control unless the licensee proves at

11  a hearing pursuant to a complaint filed by a motor vehicle

12  dealer under this section that such change is to a person who

13  is not of good moral character or who does No licensee shall

14  prohibit or prevent, or attempt to prohibit or prevent, any

15  motor vehicle dealer from changing the executive management

16  control of the motor vehicle dealer unless the proposed change

17  of executive management control of the motor vehicle dealer is

18  to a person or persons not of good moral character or who do

19  not meet the written, reasonable, and uniformly applied

20  standards of the licensee relating to the business experience

21  of executive management required by the licensee of its motor

22  vehicle dealers. A motor vehicle dealer who desires to change

23  its executive management control shall notify the licensee by

24  written notice, setting forth the name, address, and business

25  experience of the proposed executive management. A licensee

26  who receives such notice shall, in writing may, within 60 days

27  following such receipt, inform the motor vehicle dealer either

28  of the approval of the proposed change in executive management

29  or the unacceptability of the proposed change. If the licensee

30  does not so inform the motor vehicle dealer within the 60-day

31  period, its approval of the proposed change is deemed granted.


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 1  A motor vehicle dealer whose proposed change is rejected may,

 2  within 60 days following receipt of such rejection, file with

 3  the department a complaint for a determination that the

 4  proposed change of executive management has been rejected in

 5  violation of this section. The licensee has the burden of

 6  proof with respect to all issues raised by such complaint. The

 7  department shall determine, and enter an order providing, that

 8  the person proposed for the change is either qualified or is

 9  not and cannot be qualified for specific reasons, or the order

10  may provide the conditions under which a proposed executive

11  manager would be qualified. If the licensee fails to file a

12  response to the motor vehicle dealer's complaint within 30

13  days after receipt of the complaint, unless the parties agree

14  in writing to an extension, or if the department after a

15  hearing renders a decision other than one disqualifying the

16  person proposed for the change, the franchise agreement

17  between the motor vehicle dealer and the licensee shall be

18  deemed amended to incorporate such change or amended in

19  accordance with the determination or order rendered, effective

20  upon compliance by the person proposed for the change with any

21  conditions set forth in the determination or order file with

22  the department a verified complaint for a determination that

23  the proposed change of executive management will result in

24  executive management control by persons who are not of good

25  moral character or who do not meet such licensee's standards.

26  The licensee has the burden of proof with respect to all

27  issues raised by such verified complaint. If the licensee

28  fails to file such verified complaint within such 60-day

29  period or if the department, after a hearing, dismisses the

30  complaint, the franchise agreement between the motor vehicle

31  dealer and the licensee shall be deemed amended to incorporate


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 1  such change or amended in accordance with the decision

 2  rendered. For the purpose of this section, the mere

 3  termination of employment of executive management, including

 4  the dealer/operator or such similarly designated person or

 5  persons, shall not be deemed to be a change in executive

 6  management or a transfer of the franchise. Provided, however,

 7  the designation of replacement executive management shall be

 8  subject to this section.

 9         (2)  For the purpose of this section, the mere

10  termination of employment of executive management shall not be

11  deemed to be a change in executive management or a transfer of

12  the franchise; however, the proposal of replacement executive

13  management shall be subject to During the pendency of any such

14  hearing, the franchise agreement of the motor vehicle dealer

15  shall continue in effect in accordance with its terms. The

16  department shall expedite any determination requested under

17  this section.

18         (3)  For the purpose of this section, the term

19  "executive management" means, and is limited to, the person or

20  persons designated under the franchise agreement as the

21  dealer-operator, executive manager, or similarly designated

22  persons who are responsible for the overall day-to-day

23  operation of the dealership. A motor vehicle dealer may change

24  all other dealership personnel without seeking approval from

25  the licensee.

26         (4)  During the pendency of any such hearing, the

27  franchise agreement of the motor vehicle dealer shall continue

28  in effect in accordance with its terms. The department shall

29  expedite any determination requested under this section.

30         (5)  It shall be a violation of this section for the

31  licensee to reject or withhold approval of a proposed transfer


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 1  unless the licensee can prove in any court of competent

 2  jurisdiction in defense of any claim brought pursuant to s.

 3  320.697 that, in fact, the rejection or withholding of

 4  approval of the proposed transfer was reasonable. The

 5  determination of whether such rejection or withholding was

 6  reasonable shall be based on an objective standard. Alleging

 7  the permitted statutory grounds by the licensee in the written

 8  rejection of the proposed transfer shall not protect the

 9  licensee from liability for violating this section.

10         Section 6.  Subsection (4) of section 320.645, Florida

11  Statutes, is amended to read:

12         320.645  Restriction upon ownership of dealership by

13  licensee.--

14         (4)  Nothing in this chapter section shall prohibit a

15  distributor licensee-distributor as defined in s. 320.60(5) or

16  common entity that is not a manufacturer, a division of a

17  manufacturer, an entity that is controlled by a manufacturer,

18  or a common entity of a manufacturer, and that is not owned,

19  in whole or in part, directly or indirectly, by a

20  manufacturer, as defined in s. 320.60(9), and that has owned

21  and operated a motor vehicle dealership in this state on or

22  before July 1, 1996, other than a motor vehicle dealership

23  permitted by paragraph (1)(b), from receiving a license or

24  licenses as defined in s. 320.27 and while owning and

25  operating a motor vehicle dealership or dealerships that sell

26  or service sells or services motor vehicles other than any

27  line-make of motor vehicles distributed by the distributor

28  licensee-distributor.

29         Section 7.  Subsection (2) of section 501.976, Florida

30  Statutes, is amended to read:

31  


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    2003 Legislature                 CS for SB 2708, 1st Engrossed



 1         501.976  Actionable, unfair, or deceptive acts or

 2  practices.--It is an unfair or deceptive act or practice,

 3  actionable under the Florida Deceptive and Unfair Trade

 4  Practices Act, for a dealer to:

 5         (2)  Represent directly or indirectly that a vehicle is

 6  a demonstrator unless the vehicle was driven by prospective

 7  customers of a dealership selling the vehicle and such vehicle

 8  complies with the definition of a demonstrator in s.

 9  320.60(3).

10  

11  In any civil litigation resulting from a violation of this

12  section, when evaluating the reasonableness of an award of

13  attorney's fees to a private person, the trial court shall

14  consider the amount of actual damages in relation to the time

15  spent.

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

17  law.

18  

19  

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  


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