HB 1187

1
A bill to be entitled
2An act relating to agricultural equipment manufacturers,
3distributors, and dealers; amending s. 686.40, F.S.;
4providing a popular name; amending s. 686.401, F.S.;
5clarifying intent of the Agricultural Equipment
6Manufacturers and Dealers Act to provide for regulation of
7the conduct of manufacturers, distributors, and dealers of
8equipment primarily designed for or used in agriculture;
9amending s. 686.402, F.S.; revising and adding
10definitions; amending s. 686.403, F.S.; clarifying
11provisions relating to application; amending s. 686.405,
12F.S.; providing that it is unlawful to deny, delay payment
13for, or restrict warranty claims under certain
14circumstances; providing for audit of warranty claims;
15amending s. 686.406, F.S.; clarifying provisions relating
16to surplus parts; amending s. 686.407, F.S.; providing
17requirements for the establishment of a new dealership or
18relocation of a current dealership within a certain area;
19providing requirements for the sale or lease of new
20equipment; amending s. 686.409, F.S.; clarifying
21provisions relating to compensation for inventory under
22certain circumstances; amending s. 686.413, F.S.;
23providing additional unlawful acts and practices in the
24conduct of the manufacturing, distribution, wholesaling,
25franchising, sale, and advertising of equipment; providing
26requirements for termination of a franchise or selling
27agreement under certain circumstances; amending s.
28686.418, F.S.; clarifying provisions relating to the
29effect of the act on local ordinances; providing an
30effective date.
31
32Be It Enacted by the Legislature of the State of Florida:
33
34     Section 1.  Section 686.40, Florida Statutes, is amended to
35read:
36     686.40  Agricultural Farm Equipment Manufacturers and
37Dealers Act; short title.--Sections 686.40-686.418 shall be
38known by the popular name and may be cited as the "Agricultural
39Farm Equipment Manufacturers and Dealers Act."
40     Section 2.  Subsection (1) of section 686.401, Florida
41Statutes, is amended to read:
42     686.401  Legislative finding and intent; construction of
43ss. 686.40-686.418.--
44     (1)  The Legislature finds and declares that the
45distribution and sale of tractors and farm equipment primarily
46designed for or used in agriculture in this state vitally
47affects the general economy of the state, the public interest,
48and the public welfare and that, in the exercise of its police
49power, it is necessary to regulate the conduct of tractor and
50farm equipment manufacturers, distributors, and dealers of such
51equipment, and their representatives, doing business in this
52state in order to prevent fraud, unfair business practices,
53unfair methods of competition, impositions, and other abuses
54upon its citizens.
55     Section 3.  Section 686.402, Florida Statutes, is amended
56to read:
57     686.402  Definitions of terms used in ss. 686.40-
58686.418.--In construing ss. 686.40-686.418, unless the context
59otherwise requires, the word, phrase, or term:
60     (1)(16)  "Tractor or farm equipment Dealer" means a person
61who sells, solicits, or advertises the sale of new and used
62tractors and farm equipment to the consuming public, or who
63maintains such equipment, but does not include:
64     (a)  A receiver, trustee, administrator, executor, personal
65representative, guardian, or other person appointed by or acting
66under judgment, decree, or order of any court.
67     (a)(b)  A public officer while performing her or his duties
68as such officer.
69     (b)(c)  A person making casual or isolated sales of her or
70his own tractors or items of farm equipment not subject to sales
71tax under the laws of this state.
72     (c)(d)  A person engaged in the auction sale of tractors
73and farm equipment.
74     (d)(e)  A dealer in used tractors and farm equipment.
75     (2)  "Dealership" means the business of selling or
76attempting to effect the sale by a dealer of new equipment or
77the right conferred by written or oral agreement with the
78manufacturer, distributor, or wholesaler, for a definite or
79indefinite period of time, to sell or attempt to effect the sale
80of new equipment.
81     (3)(1)  "Distributor" or "wholesaler" means any person,
82firm, association, corporation, or company that sells or
83distributes new tractors and farm equipment to tractor or farm
84equipment dealers and that maintains distributor representatives
85within this state.
86     (4)(2)  "Distributor branch" means a branch office
87maintained by a distributor or wholesaler which sells or
88distributes new tractors and farm equipment to tractor or farm
89equipment dealers.
90     (5)(3)  "Distributor representative" means a representative
91employed by a distributor, distributor branch, or wholesaler.
92     (6)  "Farm Equipment" means those tractors, farm
93implements, or items which are primarily designed for or used
94use in agriculture, including horticulture. Equipment designed
95for or used in irrigation for agriculture or horticulture is
96included in this definition.
97     (7)(4)  "Factory branch" means a branch office maintained
98by a manufacturer which manufactures and assembles tractors and
99farm equipment for sale to distributors of tractors or to farm
100equipment dealers or which is maintained for directing and
101supervising the representatives of the manufacturer.
102     (8)(5)  "Factory representative" means a representative
103employed by a manufacturer or factory branch for the purpose of
104making or promoting the sale of tractors and farm equipment or
105for supervising, servicing, introducing, or contracting with
106tractor or farm equipment dealers or prospective dealers.
107     (9)(7)  "Franchise" means a contract or agreement, either
108expressed or implied, whether oral or written, for a definite or
109indefinite period of time in which a manufacturer, distributor,
110or wholesaler grants to a tractor or farm equipment dealer
111permission to use a trade name, service mark, trademark, or
112related characteristic and in which there is a common interest
113or community of interest in the marketing of tractors or farm
114equipment or services related thereto at wholesale or retail,
115whether by leasing, sale, or otherwise.
116     (10)(8)  "Franchisee" means a tractor or farm equipment
117dealer to whom a franchise is offered or granted.
118     (11)(9)  "Franchisor" means a manufacturer, distributor, or
119wholesaler who grants a franchise to a tractor or farm equipment
120dealer.
121     (12)(10)  "Fraud" means and includes actual fraud or
122constructive fraud as normally defined, in addition to the
123following:
124     (a)  A misrepresentation in any manner, whether
125intentionally false or arising from gross negligence, of a
126material fact.
127     (b)  A promise or representation not made honestly and in
128good faith.
129     (c)  An intentional failure to disclose a material fact.
130     (d)  Any artifice employed to deceive another.
131     (13)(11)  "Manufacturer" means any person engaged in the
132business of manufacturing or assembling new and unused tractors
133and farm equipment.
134     (14)(12)  "New tractor or farm equipment" means a tractor
135or item of farm equipment which has not been previously sold to
136and put into regular use or service by any person, except a
137distributor, wholesaler, or tractor or farm equipment dealer for
138resale.
139     (15)(13)  "Person" means a natural person, corporation,
140association, partnership, trust, or other business entity and,
141in the case of a business entity, includes any other entity in
142which the business entity has a majority interest or which it
143effectively controls, as well as the individual officers,
144directors, and other persons in active control of the activities
145of each such entity.
146     (16)  "Relevant market area" means the geographic area for
147which a dealer is assigned responsibility for selling or
148soliciting or advertising the sale of equipment under the terms
149of a franchise.
150     (17)(14)  "Sale" means and includes the issuance, transfer,
151agreement for transfer, exchange, pledge, hypothecation, or
152mortgage in any manner or form, whether by transfer in trust or
153otherwise, of any tractor or item of farm equipment or interest
154therein, or of any franchise related thereto, for a
155consideration and any option, subscription or other contract, or
156solicitation, looking to a sale, or offer or attempt to sell in
157any form, whether in oral or written form for a consideration.
158     (18)  "Termination" means the termination, cancellation,
159nonrenewal, or noncontinuation of a contract or agreement.
160     (19)(15)  "Tractor" means a vehicle that is operated
161principally upon a farm, grove, or orchard in connection with
162agricultural or horticultural pursuits or in connection with
163irrigation.
164     Section 4.  Section 686.403, Florida Statutes, is amended
165to read:
166     686.403  Application of ss. 686.40-686.418.--
167     (1)  Any person who engages directly or indirectly in
168purposeful agreements or contracts within this state in
169connection with the sale or advertising for sale of new
170equipment tractors and farm machinery and parts is subject to
171ss. 686.40-686.418 and to the jurisdiction of the courts of this
172state for violations of such sections in accordance with the
173provisions of the laws of this state.
174     (2)  Sections 686.40-686.418 apply to all written or oral
175agreements between a manufacturer, distributor, or wholesaler
176with a tractor or farm equipment dealer, including, but not
177limited to, the franchise offering; the franchise agreement;
178sales of goods, services, and advertising; leases or mortgages
179of real or personal property; promises to pay; security
180interests; pledges; insurance contracts; advertising contracts;
181construction or installation contracts; servicing contracts; and
182all other such agreements in which the manufacturer,
183distributor, or wholesaler has any direct or indirect interest.
184     (3)  Sections 686.40-686.418 apply to all continuing
185contracts now in effect which have no expiration date and to all
186other contracts entered into or renewed after July 1, 1984.
187     Section 5.  Section 686.405, Florida Statutes, is amended
188to read:
189     686.405  Warranty agreements; claims; compensation of
190dealers.--
191     (1)  Every manufacturer, distributor, wholesaler, factory
192branch or division, distributor branch or division, or wholesale
193branch or division shall provide a fair and reasonable warranty
194agreement on any new tractor or item of farm equipment which it
195sells and shall fairly compensate each of its tractor or farm
196equipment dealers for labor and parts used in fulfilling such
197warranty agreements.
198     (2)(a)  Each claim for payment under such warranty
199agreements made by a tractor or farm equipment dealer for such
200labor and parts shall be paid within 30 days following its
201approval. Each such claim shall be either approved or
202disapproved within 30 days after its receipt. When any such
203claim is disapproved, the tractor or farm equipment dealer who
204submitted it shall be notified in writing of such disapproval
205within such period, and such notice shall state the specific
206grounds upon which the disapproval is based.
207     (b)  Any special handling of claims required of the dealer
208by the manufacturer, distributor, wholesaler, factory branch or
209division, distributor branch or division, or wholesale branch or
210division, which handling is not uniformly required of all
211dealers of that make, may be enforced only after 30 days' notice
212in writing to the dealer and upon good and sufficient reason.
213     (3)(a)  The minimum lawful basis for compensating a dealer
214for warranty work, as provided for in this section, shall be
215calculated for labor in accordance with the reasonable and
216customary amount of time required to complete such work,
217expressed in hours and fractions of hours multiplied by the
218dealer's established hourly retail labor rate. Prior to filing a
219claim for reimbursement for warranty work, the dealer must
220notify the applicable manufacturer, distributor, or wholesaler
221of his or her hourly retail labor rate.
222     (b)  The minimum lawful basis for compensation to the
223dealer for parts used in fulfilling such warranty work shall be
224at the dealer's costs for such parts, including all freight and
225handling charges applicable to such parts, plus 15 percent of
226the sum of such costs and charges to reimburse the dealer's
227reasonable cost of doing business and providing such warranty
228service on behalf of the manufacturer.
229     (4)  It shall be unlawful to deny, delay payment for, or
230restrict a claim by a dealer for warranty service or parts,
231incentives, hold-backs, or other amounts owed to a dealer unless
232the denial, delay, or restriction is the direct result of a
233material defect in the claim that affects its validity.
234     (5)  A manufacturer, distributor, or wholesaler may audit
235warranty claims submitted by its dealers only for a period of up
236to 1 year following payment of such claims and may charge back
237to its dealers only those amounts based upon paid claims shown
238by the audit to be invalid. However, this limitation shall not
239apply in any case of fraudulent claims.
240     (6)  Any audit of a dealer by or on behalf of a
241manufacturer, distributor, or wholesaler for sales incentives,
242service incentives, rebates, or other forms of incentive
243compensation shall be completed not later than 6 months after
244the date of termination of such incentive compensation program.
245However, this limitation shall not apply in any case of
246fraudulent claims.
247     Section 6.  Section 686.406, Florida Statutes, is amended
248to read:
249     686.406  Parts; availability; return.--
250     (1)  Every manufacturer shall specify, and every dealer
251shall provide and fulfill, reasonable predelivery and
252preparation obligations for its tractors and farm equipment
253prior to delivery of the tractors and equipment to retail
254purchasers.
255     (2)  Every manufacturer shall provide for the availability
256of repair parts throughout the reasonable useful life of any
257tractor or farm equipment sold.
258     (3)  Every manufacturer or distributor shall provide to
259each of its her or his dealers, annually, an opportunity to
260return a portion of its their surplus parts inventories for
261credit. The surplus procedure shall be administered as follows:
262     (a)  The manufacturer or distributor may specify, and
263thereupon notify each of its her or his dealers of, a time
264period of at least 60 days' duration during which each of its
265the dealers may submit its their surplus parts list lists and
266return the their surplus parts to the manufacturer or
267distributor.
268     (b)  If a manufacturer or distributor has not notified a
269dealer of a specific time period for returning surplus parts
270within the preceding 12 months, the manufacturer or distributor
271she or he shall authorize and allow the dealer's surplus parts
272return request within 30 days after receipt of such request from
273such the dealer.
274     (c)  A manufacturer or distributor must allow surplus parts
275return authority on a dollar value of parts equal to 6 percent
276of the total dollar value of parts purchased from the
277manufacturer or distributor by the dealer during the 12-month
278period immediately preceding the notification to such the dealer
279by the manufacturer or distributor of the surplus parts return
280program, or the month such the dealer's return request is made,
281whichever is applicable. However, the dealer may, at her or his
282option, elect to return a dollar value of her or his surplus
283parts equal to less than 6 percent of the total dollar value of
284parts purchased by such the dealer from the manufacturer or
285distributor during the preceding 12-month period as provided
286herein.
287     (d)  No obsolete or superseded part may be returned, but
288any part listed in the manufacturer's, distributor's, or
289wholesaler's current returnable parts list at the date of
290notification of the surplus parts return program by the
291manufacturer or distributor to the dealer, or the date of the
292dealer's parts return request, whichever is applicable, is
293eligible for return and credit specified. However, returned
294parts must be in new and unused condition and must have been
295purchased from the manufacturer, distributor, or wholesaler to
296whom they are returned.
297     (e)  The minimum lawful credit to be allowed for returned
298parts is 85 percent of the wholesale cost of the parts as listed
299in the manufacturer's, distributor's, or wholesaler's current
300returnable parts list at the date of the notification of the
301surplus parts return program by the manufacturer, wholesaler, or
302distributor to the dealer, or the date of the dealer's parts
303return request, whichever is applicable.
304     (f)  Applicable credit must be issued or furnished by the
305manufacturer or distributor to the dealer within 60 days after
306receipt of her or his returned parts.
307     (g)  The packing and return freight expense incurred in any
308return of surplus parts pursuant to the terms of this section
309shall be borne by the dealer.
310     Section 7.  Section 686.407, Florida Statutes, is amended
311to read:
312     686.407  Repurchase of inventory upon termination of
313franchise agreement; establishment or relocation of dealership;
314sale or lease of new equipment.--
315     (1)  Whenever any tractor or farm equipment dealer enters
316into a franchise agreement with a manufacturer, distributor, or
317wholesaler in which agreement the dealer agrees to maintain an
318inventory of tractors, farm equipment, or repair parts and the
319franchise is subsequently terminated, the manufacturer,
320distributor, or wholesaler shall repurchase the inventory as
321provided in this section. However, the dealer may keep the
322inventory if he or she desires. If the dealer has any
323outstanding debts to the manufacturer, distributor, or
324wholesaler, then the repurchase amount may be credited to the
325dealer's account.
326     (2)  If the dealer decides not to keep the inventory, the
327manufacturer, distributor, or wholesaler shall repurchase that
328inventory previously purchased from such manufacturer,
329distributor, or wholesaler him or her and held by the dealer on
330the date of termination of the contract. The manufacturer,
331distributor, or wholesaler shall pay:
332     (a)  One hundred percent of the actual dealer cost,
333including freight, of all new, unsold, undamaged, and complete
334tractors, or other items of farm equipment which is are
335resalable, less a reasonable allowance for depreciation due to
336usage by the dealer and deterioration directly attributable to
337weather conditions at the dealer's location; and
338     (b)  Eighty-five percent of the current wholesale price of
339all new, unused, and undamaged repair parts and accessories
340which are listed in the manufacturer's, distributor's, or
341wholesaler's current returnable parts list. The manufacturer,
342distributor, or wholesaler shall also pay the dealer 6 percent
343of the current wholesale price on all new, unused, and undamaged
344repair parts returned to cover the cost of handling, packing,
345and loading. However, the manufacturer, distributor, or
346wholesaler shall have the option of performing the handling,
347packing, and loading in lieu of paying the 6-percent sum imposed
348in this subsection for these services; and, in this event, after
349receipt by the dealer of the full repurchase amount as provided
350in this section, the dealer shall make available to the
351manufacturer, distributor, or wholesaler, at the dealer's
352address or at the places at which the tractors and equipment is
353are located, all tractors and items of farm equipment previously
354purchased by the dealer.
355     (3)  Upon payment within a reasonable time of the
356repurchase amount to the dealer, the title and right of
357possession to the repurchased inventory shall transfer or be
358transferred to the manufacturer, distributor, or wholesaler, as
359the case may be.
360     (4)  The provisions of this section do not require the
361repurchase from a dealer of:
362     (a)  Any repair part which has a limited storage life or is
363otherwise subject to deterioration.
364     (a)(b)  Any single repair part which is priced as a set of
365two or more items.
366     (b)(c)  Any repair part which because of its condition is
367not resalable as a new part without repackaging or
368reconditioning.
369     (c)(d)  Any inventory for which the dealer is unable to
370furnish evidence, reasonably satisfactory to the manufacturer,
371distributor, or wholesaler, of good title, free and clear of all
372claims, liens, and encumbrances.
373     (d)(e)  Any inventory which the dealer desires to keep, if
374the dealer has a contractual right to keep it.
375     (e)(f)  Any tractor or item of farm equipment which is not
376in new, unused, undamaged, and complete condition.
377     (f)(g)  Any tractor or item of farm equipment which has
378been used by the dealer or has deteriorated because of weather
379conditions at the dealer's location unless the manufacturer,
380distributor, or wholesaler receives a reasonable allowance for
381such usage or deterioration.
382     (g)(h)  Any repair parts which are not in new, unused, and
383undamaged condition.
384     (h)(i)  Any inventory which was ordered by the dealer on or
385after the date of receipt of the notification of termination of
386the franchise or contractual agreement.
387     (i)(j)  Any inventory which was acquired by the dealer from
388any source other than the manufacturer, distributor, or
389wholesaler.
390     (5)  If any manufacturer, distributor, or wholesaler fails
391or refuses to repurchase any inventory covered under the
392provisions of this section within 60 days after termination of a
393dealer's contract, he or she is civilly liable for 100 percent
394of the current wholesale price of the inventory plus any freight
395charges paid by the dealer, such the dealer's reasonable
396attorney's fees, court costs, and interest on the current
397wholesale price computed at the legal interest rate provided in
398s. 687.01 from the 61st day after termination.
399     (6)  A manufacturer, distributor, or wholesaler that
400intends to establish a new dealership or to relocate a current
401dealership for a particular product line or make of equipment
402within the relevant market area of an existing dealership of the
403same product line or make of equipment shall give written notice
404of such intent by certified mail or overnight delivery, return
405receipt requested, to such existing dealership. The notice shall
406be delivered at least 180 days prior to establishment of a new
407dealership or relocation of a current dealership. The notice
408shall include:
409     (a)  The specific location of the additional or relocated
410dealership.
411     (b)  The date on or after which the additional or relocated
412dealership will commence operation at the new location.
413     (c)  The identity of all existing dealerships in whose
414relevant market area the new or relocated dealership is to be
415located.
416     (d)  The names and addresses of the dealer and principals
417in the new or relocated dealership.
418     (7)  A manufacturer, distributor, or wholesaler may sell or
419lease new equipment for use within the state. If the equipment
420is prepared for delivery or serviced by a dealer, the
421manufacturer, distributor, or wholesaler shall reasonably
422compensate the dealer for the preparation and delivery of the
423new equipment and pay to the dealer a reasonable commission on
424the sale or lease of the new equipment which shall not be less
425than 8 percent of the sale price of the equipment. This
426compensation must be paid or credited in the same manner as
427provided in this section. The manufacturer, distributor, or
428wholesaler, if practicable, shall utilize the dealer in the
429relevant market area for preparation and delivery. For purposes
430of the this subsection, equipment is considered to be used
431primarily within a dealer?s relevant market area if the new
432equipment is located or housed at a user?s facility located
433within the relevant market area. This subsection shall not be
434applicable to any liquidation or sale of equipment which has
435been ordered by any court.
436     Section 8.  Section 686.409, Florida Statutes, is amended
437to read:
438     686.409  Compensation for inventory upon refusal to renew,
439termination of, or restriction on transfer of a franchise.--It
440is unlawful for the manufacturer, distributor, wholesaler, or
441franchisor, without due cause, to fail to renew a franchise on
442terms then equally available to all of its her or his tractor or
443farm equipment dealers, to terminate a franchise, or to restrict
444the transfer of a franchise unless the franchisee receives fair
445and reasonable compensation for the inventory of the business.
446As used in this section, the term "due cause" shall be construed
447in accordance with the definition of due cause contained in s.
448686.413(3)(c)2.
449     Section 9.  Section 686.413, Florida Statutes, is amended
450to read:
451     686.413  Unlawful acts and practices.--Unfair methods of
452competition and unfair or deceptive acts or practices in the
453conduct of the manufacturing, distribution, wholesaling,
454franchising, sale, and advertising of tractors and farm
455equipment are declared to be unlawful.
456     (1)  It is deemed a violation of this section for any
457manufacturer, factory branch, factory representative,
458distributor, distributor branch, distributor representative,
459wholesaler, or tractor or farm equipment dealer to engage in any
460action which is arbitrary, capricious, in bad faith, or
461unconscionable and which causes damage in terms of law or equity
462to any of the parties or to the public.
463     (2)  It is deemed a violation of this section for a
464manufacturer, factory branch or division, distributor,
465distributor branch or division, wholesaler, or wholesale branch
466or division, or officer, agent, or other representative thereof,
467to coerce, compel, or attempt to coerce or compel any tractor or
468farm equipment dealer:
469     (a)  To order or accept delivery of any tractor or item of
470farm equipment, parts or accessories therefor, or other
471commodity or commodities which such tractor or farm equipment
472dealer has not voluntarily ordered.
473     (b)  To order or accept delivery of any tractor or farm
474equipment with special features, accessories, or equipment not
475included in the base list price of such tractor or farm
476equipment as publicly advertised by the manufacturer of the
477tractor or equipment.
478     (3)  It is deemed a violation of this section for a
479manufacturer, factory branch or division, distributor,
480distributor branch or division, wholesaler, or wholesale branch
481or division, or officer, agent, or other representative thereof:
482     (a)  To refuse to deliver to any tractor or farm equipment
483dealer having a franchise or contractual agreement for the
484retail sale of new tractors and farm equipment sold or
485distributed by such manufacturer, factory branch or division,
486distributor branch or division, or wholesale branch or division,
487in reasonable quantities and within a reasonable time after
488receipt of the dealer's order, any tractor or item of farm
489equipment covered by such franchise or contract specifically
490advertised or represented by such manufacturer, factory branch
491or division, distributor, distributor branch or division,
492wholesaler, or wholesale branch or division to be available for
493immediate delivery. However, the failure to deliver any such
494tractor or item of farm equipment is not considered a violation
495of this section if such failure is due to a prudent and
496reasonable restriction on the extension of credit by the
497franchisor to the dealer, an act of God, a work stoppage or
498delay due to a strike or labor difficulty, a bona fide shortage
499of materials, a freight embargo, or another cause over which the
500manufacturer, distributor, or wholesaler, or any agent thereof,
501has no control whatsoever.
502     (b)  To coerce, compel, or attempt to coerce or compel any
503tractor or farm equipment dealer to enter into any agreement,
504whether written or oral, supplementary to an existing franchise
505with such manufacturer, factory branch or division, distributor,
506distributor branch or division, wholesaler, or wholesale branch
507or division, or officer, agent, or other representative thereof;
508or to do any other act prejudicial to such dealer by threatening
509to cancel any franchise or contractual agreement existing
510between such manufacturer, factory branch or division,
511distributor, distributor branch or division, wholesaler, or
512wholesale branch or division and such dealer. However, notice in
513good faith to any tractor or farm equipment dealer of such
514dealer's violation or breach of any terms or provisions of such
515franchise or contractual agreement does not constitute a
516violation of this section if such notice is in writing and is
517mailed by registered or certified mail to such dealer at her or
518his current business address and such notice contains the
519specific facts as to the dealer's violation or breach of such
520franchise or contractual agreement.
521     (c)1.  To terminate or cancel the franchise or selling
522agreement of any tractor or farm equipment dealer without due
523cause, as defined in subparagraph 2. The termination nonrenewal
524of a franchise or selling agreement, without due cause,
525constitutes an unfair termination or cancellation, regardless of
526the specified time period of such franchise or selling
527agreement. Except when the ground for such termination or
528cancellation falls within sub-subparagraph 2.c., such
529manufacturer, factory branch or division, distributor,
530distributor branch or division, wholesaler, or wholesale branch
531or division, or officer, agent, or other representative thereof,
532shall notify a tractor or farm equipment dealer in writing of
533the termination or cancellation of the franchise or selling
534agreement of such dealer at least 180 90 days before the
535effective date of the termination or cancellation, stating the
536specific ground for such termination or cancellation. In no
537event shall the contractual term of any such franchise or
538selling agreement expire, without the written consent of the
539tractor or farm equipment dealer involved, prior to the
540expiration of at least 180 90 days following such written
541notice. During the 180-day 90-day period, either party may, in
542appropriate circumstances, petition a court of competent
543jurisdiction to modify such 180-day 90-day stay or to extend it
544pending a final determination of such proceeding on the merits.
545The court shall have authority to grant temporary, preliminary,
546and final injunctive relief. Should a dealer cure the claimed
547deficiency within the 180-day period, the franchise or selling
548agreement shall not be terminated.
549     2.  As used in this subparagraph, tests for determining
550what constitutes due cause for a manufacturer or distributor to
551terminate, cancel, or refuse to renew a franchise agreement
552include whether the dealer:
553     a.  Has transferred an ownership interest in the dealership
554without the manufacturer's or distributor's consent;
555     b.  Has made a material misrepresentation in applying for
556or in acting under the franchise agreement;
557     c.  Has filed a voluntary petition in bankruptcy or has had
558an involuntary petition in bankruptcy filed against her or him
559which has not been discharged within 60 days after the filing,
560is in default under the provisions of a security agreement in
561effect with the manufacturer or distributor, or is in
562receivership;
563     d.  Has engaged in unfair business or trade practices;
564     e.  Has inadequately represented the manufacturer's or
565distributor's products with respect to sales, service, or
566warranty work;
567     f.  Has inadequate and insufficient sales and service
568facilities and personnel;
569     g.  Has failed to comply with an applicable federal, state,
570or local licensing law;
571     h.  Has been convicted of a crime, the effect of which
572would be detrimental to the manufacturer, distributor, or
573dealership;
574     i.  Has failed to operate in the normal course of business
575for 10 consecutive business days or has terminated her or his
576business;
577     j.  Has relocated her or his place of business without the
578manufacturer's or distributor's consent; or
579     k.  Has failed to comply with the terms that are not in
580conflict with this chapter or the terms of the dealership or
581franchise agreement.
582     3.  Before termination of the franchise or selling
583agreement because of the dealer?s failure to meet marketing
584criteria or market penetration, the manufacturer, factory branch
585or division, distributor, distributor branch or division,
586wholesaler, or wholesale branch or division, or officer, agent,
587or other representative thereof, shall provide written notice of
588such intention at least 1 year in advance. After such notice,
589the manufacturer or other entity issuing the notice shall make
590good faith efforts to work with the dealer to gain the desired
591market share, including, without limitation, reasonably making
592available to the dealer an adequate inventory of new equipment
593and parts and competitive marketing programs. The manufacturer
594or other entity, at the end of the 1-year notice period, may
595terminate or elect not to renew the agreement only upon further
596written notice specifying the reasons for determining that the
597dealer failed to meet reasonable marketing criteria or market
598penetration. Such written notice must specify that termination
599is effective 90 days from the date of the notice. Either party
600may petition the court pursuant to subparagraph (c)1. for the
601relief specified in such subparagraph. Should a dealer cure the
602claimed deficiency within the 90-day period, the franchise or
603selling agreement shall not be terminated.
604     (d)  To resort to or use any false or misleading
605advertisement in connection with its her or his business as such
606manufacturer, factory branch or division, distributor,
607distributor branch or division, wholesaler, or wholesale branch
608or division, or officer, agent, or other representative thereof.
609     (e)  To offer to sell or to sell any new tractor or item of
610farm equipment, or parts or accessories therefor, to any other
611tractor or farm equipment dealer at a lower actual price
612therefor than the actual price offered to any other tractor or
613farm equipment dealer for the same model tractor or farm
614equipment identically equipped or to utilize any device,
615including, but not limited to, sales promotion plans or
616programs, which results in such lesser actual price or results
617in a fixed price predetermined solely by the manufacturer or
618distributor. However, the provisions of this paragraph do not
619apply to sales to a tractor or farm equipment dealer for resale
620to any unit or agency of the United States Government, the state
621or any of its political subdivisions, or any municipality
622located within this state. Further, the provisions of this
623paragraph do not apply so long as a manufacturer, distributor,
624or wholesaler, or any agent thereof, sells or offers to sell
625such new tractor or farm equipment, parts, or accessories to all
626of its her or his franchised tractor or farm equipment dealers
627at an equal price.
628     (f)  To willfully discriminate, either directly or
629indirectly, in price, programs, or terms of sale offered to
630franchisees, when the effect of such discrimination may be to
631substantially lessen competition or to give to one holder of a
632franchise any economic, business, or competitive advantage not
633offered to all holders of the same or similar franchise.
634     (g)  To prevent or attempt to prevent, by contract or
635otherwise, any tractor or farm equipment dealer from changing
636the capital structure of her or his dealership or the means by
637or through which the dealer finances the operation of her or his
638dealership, provided the dealer at all times meets any
639reasonable capital standards agreed to between the dealership
640and the manufacturer, distributor, or wholesaler and provided
641such change by the dealer does not result in a change in the
642executive management of the dealership.
643     (h)  To prevent or attempt to prevent, by contract or
644otherwise, any tractor or farm equipment dealer or any officer,
645member partner, or stockholder of any tractor or farm equipment
646dealer from selling or transferring any part of the interest of
647any of them to any other person or persons or party or parties.
648However, no dealer, officer, partner, or stockholder has the
649right to sell, transfer, or assign the franchise or power of
650management or control thereunder without the written consent of
651the manufacturer, distributor, or wholesaler, except that such
652consent may not be unreasonably withheld.
653     (i)  To impose, directly or indirectly, unreasonable
654restrictions on the dealer relative to transfer, renewal,
655termination, location, or site control.
656     (j)  To prevent a dealer from having an investment in or
657holding a dealership contract for the sale of competing product
658lines or makes of equipment, or to require a dealer to provide
659separate facilities for competing product lines or makes of
660equipment.
661     (k)(i)  To obtain money, goods, services, anything of
662value, or any other benefit from any other person with whom the
663tractor or farm equipment dealer does business or employs on
664account of or in relation to the transactions between the
665dealer, the franchisor, and such other person.
666     (l)(j)  To require a tractor and farm equipment dealer to
667assent to a release, assignment, novation, waiver, or estoppel
668which would relieve any person from liability imposed by ss.
669686.40-686.418.
670     (4)  It is deemed a violation of this section for a tractor
671or farm equipment dealer:
672     (a)  To require a retail purchaser of a new tractor or item
673of farm equipment, as a condition of sale and delivery of the
674tractor or equipment, also to purchase special features,
675appliances, equipment, parts, or accessories not desired or
676requested by the purchaser. However, this prohibition does not
677apply to special features, appliances, equipment, parts, or
678accessories which are already installed when the tractor or item
679of farm equipment is received by the dealer from the
680manufacturer, distributor, or wholesaler of such tractor or
681equipment.
682     (b)  To represent and sell as new and unused any tractor or
683item of farm equipment which has been used and operated for
684demonstration or other purposes without stating to the purchaser
685prior to the sale the approximate amount of use the equipment
686tractor or item of farm machinery has experienced or undergone.
687     (c)  To resort to or use any false or misleading
688advertisement in connection with her or his business as such
689tractor or farm equipment dealer.
690     Section 10.  Section 686.418, Florida Statutes, is amended
691to read:
692     686.418  Effect of act on other remedies.--Sections 686.40-
693686.40-686.418 are supplemental to and do not preempt local
694ordinances dealing with prohibited or unlawful conduct in the
695manufacturing, distribution, wholesaling, advertising, or sale
696of tractors and other items of farm equipment if such ordinances
697are not inconsistent with such sections.
698     Section 11.  This act shall take effect July 1, 2004.


CODING: Words stricken are deletions; words underlined are additions.