| 1 | A bill to be entitled |
| 2 | An act relating to deceptive and unfair trade practices; |
| 3 | amending s. 501.212, F.S.; expanding certain |
| 4 | nonapplication provisions relating to certain real estate |
| 5 | practices to include persons or private parties seeking |
| 6 | certain relief under certain circumstances; providing an |
| 7 | exception; amending s. 501.975, F.S.; expanding |
| 8 | application of certain definitions; creating s. 501.977, |
| 9 | F.S.; specifying procedures and requirements for bringing |
| 10 | certain actions against dealers by entities other than the |
| 11 | enforcing authority under certain circumstances; limiting |
| 12 | actions for damages or declaratory or injunctive relief |
| 13 | under certain circumstances; limiting awards of attorney's |
| 14 | fees and costs under certain circumstances; providing |
| 15 | procedures and requirements for consents by dealers under |
| 16 | certain circumstances; providing for determinations of |
| 17 | certain damages under such consents; providing |
| 18 | limitations; specifying effects of such consents; |
| 19 | providing for awarding attorney's fees and costs under |
| 20 | certain circumstances; providing limitations; providing an |
| 21 | effective date. |
| 22 |
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| 23 | Be It Enacted by the Legislature of the State of Florida: |
| 24 |
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| 25 | Section 1. Subsection (6) of section 501.212, Florida |
| 26 | Statutes, is amended to read: |
| 27 | 501.212 Application.--This part does not apply to: |
| 28 | (6) An act or practice involving the sale, lease, rental, |
| 29 | or appraisal of real estate by a person licensed, certified, or |
| 30 | registered pursuant to chapter 475, which act or practice |
| 31 | violates s. 475.42 or s. 475.626, or to persons or private |
| 32 | parties seeking relief for actions pertaining to the ownership, |
| 33 | use, maintenance, development, or possession of, or a lien of |
| 34 | record upon, real property located in this state if the parties |
| 35 | to the action executed a written contract or agreement that |
| 36 | expressly provides for the process of resolution of any dispute |
| 37 | or the award of damages, attorney?s fees, and costs, if any, or |
| 38 | if the real property contract, agreement, or undertaking which is |
| 39 | the subject of a dispute is otherwise specifically covered or |
| 40 | regulated by the laws of this state. However, nothing in this |
| 41 | subsection is intended to prohibit the enforcing authority from |
| 42 | retaining exclusive jurisdiction to bring any cause of action |
| 43 | authorized under s. 501.207, and to seek any civil penalties |
| 44 | authorized under s. 501.2075, for actions pertaining to the |
| 45 | ownership, use, maintenance, development, or possession of, or a |
| 46 | lien of record upon, real property located in this state. |
| 47 | Section 2. Section 501.975, Florida Statutes, is amended |
| 48 | to read: |
| 49 | 501.975 Definitions.--As used in ss. s. 501.976 and |
| 50 | 501.977, the following terms shall have the following meanings: |
| 51 | (1) "Customer" includes a customer's designated agent. |
| 52 | (2) "Dealer" means a motor vehicle dealer as defined in s. |
| 53 | 320.27, but does not include a motor vehicle auction as defined |
| 54 | in s. 320.27(1)(c)4. |
| 55 | (3) "Replacement item" means a tire, bumper, bumper |
| 56 | fascia, glass, in-dashboard equipment, seat or upholstery cover |
| 57 | or trim, exterior illumination unit, grill, sunroof, external |
| 58 | mirror and external body cladding. The replacement of up to |
| 59 | three of these items does not constitute repair of damage if |
| 60 | each item is replaced because of a product defect or damaged due |
| 61 | to vandalism while the new motor vehicle is under the control of |
| 62 | the dealer and the items are replaced with original manufacturer |
| 63 | equipment, unless an item is replaced due to a crash, collision, |
| 64 | or accident. |
| 65 | (4) "Threshold amount" means 3 percent of the |
| 66 | manufacturer's suggested retail price of a motor vehicle or |
| 67 | $650, whichever is less. |
| 68 | (5) "Vehicle" means any automobile, truck, bus, |
| 69 | recreational vehicle, or motorcycle required to be licensed |
| 70 | under chapter 320 for operation over the roads of Florida, but |
| 71 | does not include trailers, mobile homes, travel trailers, or |
| 72 | trailer coaches without independent motive power. |
| 73 | Section 3. Section 501.977, Florida Statutes, is created to |
| 74 | read: |
| 75 | 501.977 Claimant?s early recovery; speedy resolution.--With |
| 76 | respect to any action brought under this part by an entity other |
| 77 | than the enforcing authority against a dealer and notwithstanding |
| 78 | any other provision of law: |
| 79 | (1) At least 30 days before filing an action under this |
| 80 | part, the party initiating the action must serve, via certified |
| 81 | mail, a written demand upon the dealer. |
| 82 | (a) Such demand must in good faith: |
| 83 | 1. Indicate that the demand is being made pursuant to this |
| 84 | part. |
| 85 | 2. Specifically describe the alleged violation. |
| 86 | 3. If damages are being sought, state the actual damages |
| 87 | recoverable under this part and suffered as a result of the |
| 88 | alleged violation, with an explanation for the computation |
| 89 | thereof, and afford the dealer 30 days within which to pay the |
| 90 | aggrieved person such damages. |
| 91 | 4. If injunctive relief is being sought, specifically state |
| 92 | the practice sought to be enjoined and afford the dealer 30 days |
| 93 | within which to agree to cease and desist from further engaging |
| 94 | in such practice. |
| 95 | (b) No action for damages shall be brought against a dealer |
| 96 | under this part if the dealer has, within the 30-day time period, |
| 97 | paid the damages sought by an aggrieved person pursuant to a |
| 98 | demand made pursuant to paragraph (a). Such payment shall not |
| 99 | serve as an admission by the dealer of any wrongdoing or |
| 100 | violation of this part and shall serve to release the dealer from |
| 101 | any damage claim of the aggrieved person under this part in |
| 102 | connection with the transaction described in the demand. |
| 103 | (c) No action for declaratory or injunctive relief shall be |
| 104 | brought under this part if the dealer has, within the 30-day time |
| 105 | period, agreed to cease and desist from further engaging in the |
| 106 | practice complained of in a demand made pursuant to paragraph |
| 107 | (a). The agreement by the dealer to cease and desist shall: |
| 108 | 1. Not serve as an admission by the dealer of any |
| 109 | wrongdoing or violation of this part. |
| 110 | 2. Be served on the aggrieved person within the 30-day time |
| 111 | period. |
| 112 | 3. Be forwarded by the dealer to the Department of Legal |
| 113 | Affairs, together with a copy of the demand, and have the same |
| 114 | effect and be enforced by the enforcing authority as if the |
| 115 | agreement were an order under s. 501.208. |
| 116 | (d) If the dealer rejects the demand, the party initiating |
| 117 | the claim shall not be entitled to recover his or her reasonable |
| 118 | attorney?s fees and costs if: |
| 119 | 1. The demand made under this part was not made in good |
| 120 | faith; or |
| 121 | 2. The judgment obtained for actual damages, not including |
| 122 | attorney's fees and costs, is not at least 75 percent of the |
| 123 | actual damages sought in the demand. |
| 124 | (2) Any time after the filing of an action under this |
| 125 | part, but no later than 60 days before trial, the dealer may |
| 126 | file a consent to the relief sought in such action. |
| 127 | (a) The consent may be directed to any one or more claims |
| 128 | of a violation of this part asserted by the aggrieved party but |
| 129 | need not be made as to all claims of violation of this part. |
| 130 | (b) With the filing of the consent, the consenting party |
| 131 | shall: |
| 132 | 1. With respect to any damage claim, pay the aggrieved |
| 133 | party, contemporaneously with the filing of the consent, the |
| 134 | actual damages described in the demand in subsection (1) or any |
| 135 | lesser amount stated by the aggrieved party via interrogatory or |
| 136 | deposition or, if the consenting party disputes the amount of |
| 137 | actual damages sought under this part, the consenting party may |
| 138 | request a summary procedure with respect to the issue of damages |
| 139 | only in which the court shall, on an expedited basis, determine |
| 140 | the actual damages recoverable under this part. |
| 141 | 2. With respect to any claim for declaratory or injunctive |
| 142 | relief, agree to such relief as specifically requested in the |
| 143 | complaint or, if the consenting party disputes the scope of such |
| 144 | requested relief, request a summary procedure in which the court |
| 145 | shall, without further discovery, determine and impose the |
| 146 | appropriate and specific relief available under this part. |
| 147 | (c) In connection with a requested summary procedure to |
| 148 | determine actual damages, the court shall: |
| 149 | 1. Establish what limited discovery, if any, is to be |
| 150 | taken, if not already taken, recognizing the limited purpose of |
| 151 | the proceeding. |
| 152 | 2. After an evidentiary hearing, enter an order finding, |
| 153 | based on a preponderance of the evidence, the amount of actual |
| 154 | damages suffered under this part as if a violation had occurred. |
| 155 | 3. Afford the dealer 30 days after the date of such order |
| 156 | within which to pay the actual damages determined. While a |
| 157 | dealer may file more than one consent during the course of the |
| 158 | proceedings and during such summary procedures more than one |
| 159 | consent may be heard, the dealer may only make one request for a |
| 160 | summary procedure in the course of litigating an action brought |
| 161 | pursuant to this part. |
| 162 | (d) A consent shall not serve as an admission by the |
| 163 | dealer of any wrongdoing or violation of this part and shall |
| 164 | serve to release the dealer from any claim of the aggrieved |
| 165 | person under this part in connection with the transaction |
| 166 | described in the complaint. However, if the consent was limited |
| 167 | to less than all claims of the asserted violations of this part, |
| 168 | the release shall be limited to the specific violation described |
| 169 | in the consent. If the dealer fails to pay the actual damages as |
| 170 | provided in paragraph (c), judgment shall be entered against the |
| 171 | consenting party for such actual damages and such consent shall |
| 172 | be deemed an admission of wrongdoing and a violation of this |
| 173 | part. |
| 174 | (e) The party in whose favor a consent is filed shall |
| 175 | receive his or her reasonable attorney?s fees and costs from the |
| 176 | dealer. However, such fees and costs shall not be recoverable if: |
| 177 | 1. The demand in subsection (1) was not made in good faith; |
| 178 | or |
| 179 | 2. The amount paid pursuant to subsection (2), not |
| 180 | including attorney's fees and costs, is not at least 75 percent |
| 181 | of the actual damages sought in the demand made pursuant to |
| 182 | subsection (1). |
| 183 | Section 4. This act shall take effect July 1, 2004. |