| 1 | The Committee on Judiciary recommends the following: |
| 2 |
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| 3 | Committee Substitute |
| 4 | Remove the entire bill and insert: |
| 5 | A bill to be entitled |
| 6 | An act relating to deceptive and unfair trade practices; |
| 7 | amending s. 501.212, F.S.; expanding certain |
| 8 | nonapplication provisions relating to certain real estate |
| 9 | practices to include persons or private parties seeking |
| 10 | certain relief under certain circumstances; providing an |
| 11 | exception; amending s. 501.975, F.S.; expanding |
| 12 | application of certain definitions; creating s. 501.977, |
| 13 | F.S.; specifying procedures and requirements for bringing |
| 14 | certain actions against motor vehicle dealers by persons |
| 15 | other than the enforcing authority under certain |
| 16 | circumstances; limiting actions for damages or declaratory |
| 17 | or injunctive relief under certain circumstances; limiting |
| 18 | awards of attorney's fees and costs under certain |
| 19 | circumstances; providing procedures and requirements for a |
| 20 | dealer's acceptance of a demand under certain |
| 21 | circumstances; providing for determinations of certain |
| 22 | damages under such accepted demands; providing |
| 23 | limitations; specifying effects of accepting such demands; |
| 24 | providing for awarding attorney's fees and costs under |
| 25 | certain circumstances; providing limitations; providing |
| 26 | for application to class actions; providing limitations; |
| 27 | providing an effective date. |
| 28 |
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| 29 | Be It Enacted by the Legislature of the State of Florida: |
| 30 |
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| 31 | Section 1. Subsection (6) of section 501.212, Florida |
| 32 | Statutes, is amended to read: |
| 33 | 501.212 Application.--This part does not apply to: |
| 34 | (6) An act or practice involving the sale, lease, rental, |
| 35 | or appraisal of real estate by a person licensed, certified, or |
| 36 | registered pursuant to chapter 475, which act or practice |
| 37 | violates s. 475.42 or s. 475.626, or to persons or private |
| 38 | parties seeking relief for actions pertaining to the commercial |
| 39 | ownership, use, maintenance, development, or possession of, or a |
| 40 | lien of record upon, real property located in this state if the |
| 41 | parties to the action executed a written contract or agreement |
| 42 | that expressly provides for the process of resolution of any |
| 43 | dispute and the award of damages, attorney's fees, and costs, if |
| 44 | any, or if the action is one that concerns maintenance of |
| 45 | property and there are provisions of law that specifically |
| 46 | require the owner of the property to comply with applicable |
| 47 | building, housing, and health codes and maintain common areas in |
| 48 | a good state of repair, appearance, safety, and cleanliness, and |
| 49 | if the owner's failure to comply may result in legal or |
| 50 | equitable remedies, including the award of attorney's fees. |
| 51 | However, nothing in this subsection is intended to prohibit the |
| 52 | enforcing authority from retaining exclusive jurisdiction to |
| 53 | bring any cause of action authorized under s. 501.207, and to |
| 54 | seek any civil penalties authorized under s. 501.2075, for |
| 55 | actions pertaining to the ownership, use, maintenance, |
| 56 | development, or possession of, or a lien of record upon, real |
| 57 | property located in this state. |
| 58 | Section 2. Section 501.975, Florida Statutes, is amended |
| 59 | to read: |
| 60 | 501.975 Definitions.--As used in ss. s. 501.976 and |
| 61 | 501.977, the following terms shall have the following meanings: |
| 62 | (1) "Customer" includes a customer's designated agent. |
| 63 | (2) "Dealer" means a motor vehicle dealer as defined in s. |
| 64 | 320.27, but does not include a motor vehicle auction as defined |
| 65 | in s. 320.27(1)(c)4. |
| 66 | (3) "Replacement item" means a tire, bumper, bumper |
| 67 | fascia, glass, in-dashboard equipment, seat or upholstery cover |
| 68 | or trim, exterior illumination unit, grill, sunroof, external |
| 69 | mirror and external body cladding. The replacement of up to |
| 70 | three of these items does not constitute repair of damage if |
| 71 | each item is replaced because of a product defect or damaged due |
| 72 | to vandalism while the new motor vehicle is under the control of |
| 73 | the dealer and the items are replaced with original manufacturer |
| 74 | equipment, unless an item is replaced due to a crash, collision, |
| 75 | or accident. |
| 76 | (4) "Threshold amount" means 3 percent of the |
| 77 | manufacturer's suggested retail price of a motor vehicle or |
| 78 | $650, whichever is less. |
| 79 | (5) "Vehicle" means any automobile, truck, bus, |
| 80 | recreational vehicle, or motorcycle required to be licensed |
| 81 | under chapter 320 for operation over the roads of Florida, but |
| 82 | does not include trailers, mobile homes, travel trailers, or |
| 83 | trailer coaches without independent motive power. |
| 84 | Section 3. Section 501.977, Florida Statutes, is created |
| 85 | to read: |
| 86 | 501.977 Claimant's early recovery; speedy |
| 87 | resolution.--With respect to any action brought under this part |
| 88 | With respect to any action brought under this part by a person |
| 89 | other than the enforcing authority against a dealer and |
| 90 | notwithstanding any other provision of law: |
| 91 | (1) At least 30 days before filing an action under this |
| 92 | part, the party initiating the action must serve, via certified |
| 93 | mail, a written demand upon the dealer. Such demand must: |
| 94 | (a) Be made in good faith. |
| 95 | (b) Indicate that the demand is being made pursuant to |
| 96 | this part. |
| 97 | (c) Specifically describe the alleged violation. |
| 98 | (d) If damages are being sought, state the actual damages |
| 99 | recoverable under this part and suffered as a result of the |
| 100 | alleged violation, with an explanation for the computation |
| 101 | thereof. |
| 102 | (e) If injunctive relief is being sought, specifically |
| 103 | state the practice sought to be enjoined and afford the dealer |
| 104 | 30 days within which to agree to cease and desist from further |
| 105 | engaging in such practice. |
| 106 | (2) No action for damages shall be brought against a |
| 107 | dealer under this part if the dealer, within 30 days after |
| 108 | receiving the demand made pursuant to subsection (1), pays the |
| 109 | damages sought by a claimant pursuant to the demand. Such |
| 110 | payment shall not serve as an admission by the dealer of any |
| 111 | wrongdoing or violation of this part and shall serve to release |
| 112 | the dealer from any damage claim of the claimant under this part |
| 113 | in connection with the specific violation described in the |
| 114 | demand. |
| 115 | (3) No action for declaratory or injunctive relief shall |
| 116 | be brought under this part if the dealer, within 30 days after |
| 117 | receiving the demand made pursuant to subsection (1), agrees to |
| 118 | cease and desist from further engaging in the practice |
| 119 | complained of in the demand. The agreement by the dealer to |
| 120 | cease and desist shall: |
| 121 | (a) Not serve as an admission by the dealer of any |
| 122 | wrongdoing or violation of this part. |
| 123 | (b) Be forwarded by the dealer to the Department of Legal |
| 124 | Affairs, together with a copy of the demand, and have the same |
| 125 | effect and be enforced by the enforcing authority as if the |
| 126 | agreement were an order under s. 501.208. |
| 127 | (4) At any time prior to the dealer accepting a demand |
| 128 | served by a claimant pursuant to subsection (1), but not later |
| 129 | than 90 days prior to the date of trial, the claimant may serve |
| 130 | the dealer with an amended demand. |
| 131 | (5) With respect to an action for damages that has been |
| 132 | instituted seeking relief under this part, a dealer may accept |
| 133 | the latest demand at any time prior to 60 days before trial by |
| 134 | paying the amount demanded. The effect of such payment shall be |
| 135 | the same as if the payment had been made in accordance with |
| 136 | subsection (2). With respect to an action for injunctive relief |
| 137 | under this part, a dealer may accept the latest demand at any |
| 138 | time prior to 60 days before trial by agreeing to cease and |
| 139 | desist from further engaging in the practice complained of in |
| 140 | the latest demand. Such agreement to cease and desist shall be |
| 141 | treated and be the same as if it had been made in accordance |
| 142 | with subsection (3). Upon acceptance by the dealer of the latest |
| 143 | demand, the complainant shall be entitled to recover reasonable |
| 144 | attorney's fees and costs through the date of acceptance. |
| 145 | (6) Notwithstanding any other provision of this section, |
| 146 | in a claim for damages, if the dealer does not accept the latest |
| 147 | demand served by a claimant and the claimant prevails, the |
| 148 | claimant shall be entitled to recover his or her reasonable |
| 149 | attorney's fees and costs only if the judgment obtained for |
| 150 | actual damages recoverable under this part, excluding attorney's |
| 151 | fees, costs, and prejudgment interest after the date of the |
| 152 | filing of the action, exceeds 75 percent of the largest monetary |
| 153 | demand made in accordance with subsections (1) and (4). |
| 154 | (7) Notwithstanding any other provision of law, this |
| 155 | section shall apply to class action claims subject to the |
| 156 | following limitations: |
| 157 | (a) The demand shall be made both as to the named |
| 158 | plaintiff or plaintiffs and the putative class, which shall be |
| 159 | defined. |
| 160 | (b) The dealer cannot accept the demand as to the named |
| 161 | plaintiff or plaintiffs alone unless the court enters an order |
| 162 | denying the certification of the class action or the class claim |
| 163 | is otherwise dismissed. |
| 164 | (c) If the dealer accepts the demand as to the entire |
| 165 | class within 30 days after the dealer's receipt of the demand, |
| 166 | any consideration agreed to be paid by the dealer pursuant to |
| 167 | the demand shall not be paid until an action is filed under this |
| 168 | part and the settlement is approved by a court of competent |
| 169 | jurisdiction. Such action shall be for the sole purpose of |
| 170 | administering the agreed-upon class action settlement subject to |
| 171 | the court's discretion to assess the reasonableness and fairness |
| 172 | of the class settlement. If the court finds the settlement to be |
| 173 | unreasonable or unfair to the class, the action shall be |
| 174 | dismissed without prejudice. Notwithstanding this paragraph, the |
| 175 | dealer shall bear the costs of the action, including the cost of |
| 176 | administering the settlement and notification to class members, |
| 177 | and the complainant shall be entitled to recover reasonable |
| 178 | attorney's fees and costs. |
| 179 | (d) If the dealer accepts the demand after the initiation |
| 180 | of the action under this part, such acceptance shall have the |
| 181 | same effect as a conditional settlement of a class action claim |
| 182 | subject to court approval. If the court rejects the conditional |
| 183 | settlement, the acceptance shall be considered null and void. |
| 184 | Otherwise, the dealer shall bear the costs of the action, |
| 185 | including the cost of administering the settlement and |
| 186 | notification to class members, and the complainant shall be |
| 187 | entitled to recover reasonable attorney's fees and costs. |
| 188 | (e) If a class claim is not certified or the class claim |
| 189 | is dismissed, the named plaintiff or plaintiffs shall not |
| 190 | recover attorney's fees and costs related to the class action |
| 191 | component of the claim. |
| 192 | Section 4. This act shall take effect July 1, 2004. |