Senate Bill sb2404
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Florida Senate - 2004 SB 2404
By Senator Bennett
21-1350A-04 See HB 1181
1 A bill to be entitled
2 An act relating to deceptive and unfair trade
3 practices; amending s. 501.212, F.S.; expanding
4 certain nonapplication provisions relating to
5 certain real estate practices to include
6 persons or private parties seeking certain
7 relief under certain circumstances; providing
8 an exception; amending s. 501.975, F.S.;
9 expanding application of certain definitions;
10 creating s. 501.977, F.S.; specifying
11 procedures and requirements for bringing
12 certain actions against dealers by entities
13 other than the enforcing authority under
14 certain circumstances; limiting actions for
15 damages or declaratory or injunctive relief
16 under certain circumstances; limiting awards of
17 attorney's fees and costs under certain
18 circumstances; providing procedures and
19 requirements for consents by dealers under
20 certain circumstances; providing for
21 determinations of certain damages under such
22 consents; providing limitations; specifying
23 effects of such consents; providing for
24 awarding attorney's fees and costs under
25 certain circumstances; providing limitations;
26 providing an effective date.
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28 Be It Enacted by the Legislature of the State of Florida:
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30 Section 1. Subsection (6) of section 501.212, Florida
31 Statutes, is amended to read:
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Florida Senate - 2004 SB 2404
21-1350A-04 See HB 1181
1 501.212 Application.--This part does not apply to:
2 (6) An act or practice involving the sale, lease,
3 rental, or appraisal of real estate by a person licensed,
4 certified, or registered pursuant to chapter 475, which act or
5 practice violates s. 475.42 or s. 475.626, or to persons or
6 private parties seeking relief for actions pertaining to the
7 ownership, use, maintenance, development, or possession of, or
8 a lien of record upon, real property located in this state if
9 the parties to the action executed a written contract or
10 agreement that expressly provides for the process of
11 resolution of any dispute or the award of damages, attorney's
12 fees, and costs, if any, or if the real property contract,
13 agreement, or undertaking which is the subject of a dispute is
14 otherwise specifically covered or regulated by the laws of
15 this state. However, nothing in this subsection is intended to
16 prohibit the enforcing authority from retaining exclusive
17 jurisdiction to bring any cause of action authorized under s.
18 501.207, and to seek any civil penalties authorized under s.
19 501.2075, for actions pertaining to the ownership, use,
20 maintenance, development, or possession of, or a lien of
21 record upon, real property located in this state.
22 Section 2. Section 501.975, Florida Statutes, is
23 amended to read:
24 501.975 Definitions.--As used in ss. s. 501.976 and
25 501.977, the following terms shall have the following
26 meanings:
27 (1) "Customer" includes a customer's designated agent.
28 (2) "Dealer" means a motor vehicle dealer as defined
29 in s. 320.27, but does not include a motor vehicle auction as
30 defined in s. 320.27(1)(c)4.
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Florida Senate - 2004 SB 2404
21-1350A-04 See HB 1181
1 (3) "Replacement item" means a tire, bumper, bumper
2 fascia, glass, in-dashboard equipment, seat or upholstery
3 cover or trim, exterior illumination unit, grill, sunroof,
4 external mirror and external body cladding. The replacement of
5 up to three of these items does not constitute repair of
6 damage if each item is replaced because of a product defect or
7 damaged due to vandalism while the new motor vehicle is under
8 the control of the dealer and the items are replaced with
9 original manufacturer equipment, unless an item is replaced
10 due to a crash, collision, or accident.
11 (4) "Threshold amount" means 3 percent of the
12 manufacturer's suggested retail price of a motor vehicle or
13 $650, whichever is less.
14 (5) "Vehicle" means any automobile, truck, bus,
15 recreational vehicle, or motorcycle required to be licensed
16 under chapter 320 for operation over the roads of Florida, but
17 does not include trailers, mobile homes, travel trailers, or
18 trailer coaches without independent motive power.
19 Section 3. Section 501.977, Florida Statutes, is
20 created to read:
21 501.977 Claimant's early recovery; speedy
22 resolution.--With respect to any action brought under this
23 part by an entity other than the enforcing authority against a
24 dealer and notwithstanding any other provision of law:
25 (1) At least 30 days before filing an action under
26 this part, the party initiating the action must serve, via
27 certified mail, a written demand upon the dealer.
28 (a) Such demand must in good faith:
29 1. Indicate that the demand is being made pursuant to
30 this part.
31 2. Specifically describe the alleged violation.
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Florida Senate - 2004 SB 2404
21-1350A-04 See HB 1181
1 3. If damages are being sought, state the actual
2 damages recoverable under this part and suffered as a result
3 of the alleged violation, with an explanation for the
4 computation thereof, and afford the dealer 30 days within
5 which to pay the aggrieved person such damages.
6 4. If injunctive relief is being sought, specifically
7 state the practice sought to be enjoined and afford the dealer
8 30 days within which to agree to cease and desist from further
9 engaging in such practice.
10 (b) No action for damages shall be brought against a
11 dealer under this part if the dealer has, within the 30-day
12 time period, paid the damages sought by an aggrieved person
13 pursuant to a demand made pursuant to paragraph (a). Such
14 payment shall not serve as an admission by the dealer of any
15 wrongdoing or violation of this part and shall serve to
16 release the dealer from any damage claim of the aggrieved
17 person under this part in connection with the transaction
18 described in the demand.
19 (c) No action for declaratory or injunctive relief
20 shall be brought under this part if the dealer has, within the
21 30-day time period, agreed to cease and desist from further
22 engaging in the practice complained of in a demand made
23 pursuant to paragraph (a). The agreement by the dealer to
24 cease and desist shall:
25 1. Not serve as an admission by the dealer of any
26 wrongdoing or violation of this part.
27 2. Be served on the aggrieved person within the 30-day
28 time period.
29 3. Be forwarded by the dealer to the Department of
30 Legal Affairs, together with a copy of the demand, and have
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Florida Senate - 2004 SB 2404
21-1350A-04 See HB 1181
1 the same effect and be enforced by the enforcing authority as
2 if the agreement were an order under s. 501.208.
3 (d) If the dealer rejects the demand, the party
4 initiating the claim shall not be entitled to recover his or
5 her reasonable attorney's fees and costs if:
6 1. The demand made under this part was not made in
7 good faith; or
8 2. The judgment obtained for actual damages, not
9 including attorney's fees and costs, is not at least 75
10 percent of the actual damages sought in the demand.
11 (2) Any time after the filing of an action under this
12 part, but no later than 60 days before trial, the dealer may
13 file a consent to the relief sought in such action.
14 (a) The consent may be directed to any one or more
15 claims of a violation of this part asserted by the aggrieved
16 party but need not be made as to all claims of violation of
17 this part.
18 (b) With the filing of the consent, the consenting
19 party shall:
20 1. With respect to any damage claim, pay the aggrieved
21 party, contemporaneously with the filing of the consent, the
22 actual damages described in the demand in subsection (1) or
23 any lesser amount stated by the aggrieved party via
24 interrogatory or deposition or, if the consenting party
25 disputes the amount of actual damages sought under this part,
26 the consenting party may request a summary procedure with
27 respect to the issue of damages only in which the court shall,
28 on an expedited basis, determine the actual damages
29 recoverable under this part.
30 2. With respect to any claim for declaratory or
31 injunctive relief, agree to such relief as specifically
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Florida Senate - 2004 SB 2404
21-1350A-04 See HB 1181
1 requested in the complaint or, if the consenting party
2 disputes the scope of such requested relief, request a summary
3 procedure in which the court shall, without further discovery,
4 determine and impose the appropriate and specific relief
5 available under this part.
6 (c) In connection with a requested summary procedure
7 to determine actual damages, the court shall:
8 1. Establish what limited discovery, if any, is to be
9 taken, if not already taken, recognizing the limited purpose
10 of the proceeding.
11 2. After an evidentiary hearing, enter an order
12 finding, based on a preponderance of the evidence, the amount
13 of actual damages suffered under this part as if a violation
14 had occurred.
15 3. Afford the dealer 30 days after the date of such
16 order within which to pay the actual damages determined. While
17 a dealer may file more than one consent during the course of
18 the proceedings and during such summary procedures more than
19 one consent may be heard, the dealer may only make one request
20 for a summary procedure in the course of litigating an action
21 brought pursuant to this part.
22 (d) A consent shall not serve as an admission by the
23 dealer of any wrongdoing or violation of this part and shall
24 serve to release the dealer from any claim of the aggrieved
25 person under this part in connection with the transaction
26 described in the complaint. However, if the consent was
27 limited to less than all claims of the asserted violations of
28 this part, the release shall be limited to the specific
29 violation described in the consent. If the dealer fails to pay
30 the actual damages as provided in paragraph (c), judgment
31 shall be entered against the consenting party for such actual
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Florida Senate - 2004 SB 2404
21-1350A-04 See HB 1181
1 damages and such consent shall be deemed an admission of
2 wrongdoing and a violation of this part.
3 (e) The party in whose favor a consent is filed shall
4 receive his or her reasonable attorney's fees and costs from
5 the dealer. However, such fees and costs shall not be
6 recoverable if:
7 1. The demand in subsection (1) was not made in good
8 faith; or
9 2. The amount paid pursuant to subsection (2), not
10 including attorney's fees and costs, is not at least 75
11 percent of the actual damages sought in the demand made
12 pursuant to subsection (1).
13 Section 4. This act shall take effect July 1, 2004.
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