HB 1341

CS

CHAMBER ACTION

1	The Transportation Committee recommends the following:
2
3	Council/Committee Substitute
4	Remove the entire bill and insert:
5	A bill to be entitled
6	An act relating to motor vehicle dealers; amending s.
7	501.212, F.S.; exempting certain claims against a motor
8	vehicle dealer from the provisions of the Florida
9	Deceptive and Unfair Trade Practices Act; preserving an
10	enforcing authority's exercise of certain powers; amending
11	s. 501.976, F.S.; revising acts by a motor vehicle dealer
12	that constitute unfair or deceptive acts or practices;
13	providing a restriction on certain civil actions;
14	providing complaint procedures; requiring a presuit notice
15	to the motor vehicle dealer; providing a form for the
16	notice; subjecting a person convicted of perjury to a
17	penalty; providing for satisfaction of complaint;
18	providing for award of certain costs to the prevailing
19	party; providing for posting of bond under certain
20	circumstances; defining "actual damages"; providing for
21	application; preserving an enforcing authority's exercise
22	of certain powers; deleting a reference to factors used to
23	determine attorney's fees; providing an effective date.
24
25	Be It Enacted by the Legislature of the State of Florida:
26
27	Section 1.  Subsection (8) is added to section 501.212,
28	Florida Statutes, to read:
29	501.212  Applications Application.--This part does not
30	apply to:
31	(8)  A claim against a motor vehicle dealer as defined in
32	s. 320.27, except as described in s. 501.976. This exemption
33	does not limit or prohibit an enforcing authority from
34	exercising its powers under this part to take action for any
35	violations of law.
36	Section 2.  Section 501.976, Florida Statutes, is amended
37	to read:
38	501.976  Actionable, unfair, or deceptive acts or practices
39	of motor vehicle dealers.--
40	(1)  It is an unfair or deceptive act or practice,
41	actionable under the Florida Deceptive and Unfair Trade
42	Practices Act, for a motor vehicle dealer to:
43	(a)(1)  Represent directly or indirectly that a motor
44	vehicle is a factory executive vehicle or executive vehicle
45	unless such vehicle was purchased directly from the manufacturer
46	or a subsidiary or distributor of the manufacturer and the
47	vehicle was used exclusively by the manufacturer, its subsidiary
48	or distributor, or a dealer for the commercial or personal use
49	of the manufacturer's, subsidiary's or distributor's, or
50	dealer's employees or owners.
51	(b)(2)  Represent directly or indirectly that a vehicle is
52	a demonstrator unless the vehicle complies with the definition
53	of a demonstrator in s. 320.60(3).
54	(c)(3)  Represent the previous usage or status of a vehicle
55	to be something that it was not, or make usage or status
56	representations unless the representation was made in good faith
57	and the motor vehicle dealer has obtained correct information
58	regarding the history of the vehicle to support the
59	representations.
60	(d)(4)  Represent the quality of care, regularity of
61	servicing, or general condition of a vehicle unless the
62	representation was made in good faith and the motor vehicle
63	dealer has obtained information to support such representation
64	known by the dealer to be true and supportable by material fact.
65	(e)(5)  Represent orally or in writing that a particular
66	vehicle has not sustained structural or substantial skin damage
67	unless the statement was is made in good faith and the vehicle
68	has been inspected by the dealer or his or her agent to
69	determine whether the vehicle has incurred such damage.
70	(f)(6)  Sell a vehicle without fully and conspicuously
71	disclosing in writing at or before the consummation of sale any
72	warranty or guarantee terms, obligations, or conditions that the
73	dealer or manufacturer has given to the buyer. If the warranty
74	obligations are to be shared by the dealer and the buyer, the
75	method of determining the percentage of repair costs to be
76	assumed by each party must be disclosed. If the dealer intends
77	to disclaim or limit any expressed or implied warranty, the
78	disclaimer must be in writing in a conspicuous manner and in lay
79	terms in accordance with chapter 672 and the Magnuson-Moss
80	Warranty--Federal Trade Commission Improvement Act.
81	(g)(7)  Provide an express or implied warranty and fail to
82	honor such warranty unless properly disclaimed pursuant to
83	paragraph (f) subsection (6).
84	(h)(8)  Misrepresent warranty coverage, application period,
85	or any warranty transfer cost or conditions to a customer.
86	(i)(9)  Obtain signatures from a customer on contracts that
87	are not fully completed at the time the customer signs or which
88	do not reflect accurately the negotiations and agreement between
89	the customer and the dealer.
90	(j)(10)  Require or accept a deposit from a prospective
91	customer prior to entering into a binding contract for the
92	purchase and sale of a vehicle unless the customer is given a
93	written receipt that states how long the dealer will hold the
94	vehicle from other sale and the amount of the deposit, and
95	clearly and conspicuously states whether and upon what
96	conditions the deposit is refundable or nonrefundable.
97	(k)(11)  Add to the cash price of a vehicle as defined in
98	s. 520.02(2) any fee or charge other than those provided in that
99	section and in rule 3D-50.001, Florida Administrative Code. All
100	fees or charges permitted to be added to the cash price by rule
101	3D-50.001, Florida Administrative Code, must be fully disclosed
102	to customers in all binding contracts concerning the vehicle's
103	selling price.
104	(l)(12)  Alter or change the odometer mileage of a vehicle
105	except in accordance with 49 U.S.C. s. 32704.
106	(m)(13)  Sell a vehicle without disclosing to the customer
107	the actual year and model of the vehicle.
108	(n)(14)  File a lien against a new vehicle purchased with a
109	check unless the dealer fully discloses to the purchaser that a
110	lien will be filed if purchase is made by check and fully
111	discloses to the buyer the procedures and cost to the buyer for
112	gaining title to the vehicle after the lien is filed.
113	(o)(15)  Increase the price of the vehicle after having
114	accepted an order of purchase or a contract from a buyer,
115	notwithstanding subsequent receipt of an official price change
116	notification. The price of a vehicle may be increased after a
117	dealer accepts an order of purchase or a contract from a buyer
118	if:
119	1.(a)  A trade-in vehicle is reappraised because it
120	subsequently is damaged, or parts or accessories are removed;
121	2.(b)  The price increase is caused by the addition of new
122	equipment, as required by state or federal law;
123	3.(c)  The price increase is caused by the revaluation of
124	the United States dollar by the Federal Government, in the case
125	of a foreign-made vehicle;
126	4.(d)  The price increase is caused by state or federal tax
127	rate changes; or
128	5.(e)  Price protection is not provided by the
129	manufacturer, importer, or distributor.
130	(p)(16)  Advertise the price of a vehicle unless the
131	vehicle is identified by year, make, model, and a commonly
132	accepted trade, brand, or style name. The advertised price must
133	include all fees or charges that the customer must pay,
134	including freight or destination charge, dealer preparation
135	charge, and charges for undercoating or rustproofing. State and
136	local taxes, tags, registration fees, and title fees, unless
137	otherwise required by local law or standard, need not be
138	disclosed in the advertisement. When two or more dealers
139	advertise jointly, with or without participation of the
140	franchisor, the advertised price need not include fees and
141	charges that are variable among the individual dealers
142	cooperating in the advertisement, but the nature of all charges
143	that are not included in the advertised price must be disclosed
144	in the advertisement.
145	(q)(17)  Charge a customer for any predelivery service
146	required by the manufacturer, distributor, or importer for which
147	the dealer is reimbursed by the manufacturer, distributor, or
148	importer.
149	(r)(18)  Charge a customer for any predelivery service
150	without having printed on all documents that include a line item
151	for predelivery service the following disclosure: "This charge
152	represents costs and profit to the dealer for items such as
153	inspecting, cleaning, and adjusting vehicles, and preparing
154	documents related to the sale."
155	(s)(19)  Fail to disclose damage to a new motor vehicle, as
156	defined in s. 319.001(8), of which the dealer had actual
157	knowledge, if the dealer's actual cost of repairs exceeds the
158	threshold amount, excluding replacement items.
159	(t)  Engage in other unfair or deceptive acts or practices
160	in the sale, leasing, or servicing of motor vehicles.
161	(2)  No civil action seeking relief under the Florida
162	Deceptive and Unfair Trade Practices Act shall be filed by a
163	prospective customer, customer, buyer, purchaser, or lessee
164	against a motor vehicle dealer, as defined in s. 320.27, except
165	pursuant to this section.
166	(3)  As a condition precedent to the filing of a complaint
167	for a violation of this section, the complainant must have
168	lawful possession of the vehicle involved in the transaction
169	complained of and:
170	(a)  At least 40 days before filing a complaint resulting
171	from a transaction with a motor vehicle dealer, the claimant
172	shall send a statutory written notice as described in paragraph
173	(b) to the prospective defendant via certified mail, overnight
174	courier, or hand delivery addressed to the motor vehicle
175	dealer's general manager or registered agent for service of
176	process. Any notice under this subsection shall be made in good
177	faith and shall:
178	1.  Specifically reference the transaction complained of
179	and attach a copy of documentation relating to the transaction.
180	2.  Describe the alleged violations of this section.
181	3.  Specifically describe the amount and nature of the
182	actual damages alleged by the claimant to be recoverable under
183	this section.
184	(b)  The notice required under paragraph (a) shall be in
185	substantially the following form:
186	STATUTORY FLORIDA DECEPTIVE AND UNFAIR TRADE PRACTICE
187	PRESUIT NOTICE TO MOTOR VEHICLE DEALER
188	(Section 501.976, Florida Statutes)
189
190	Claimant's Name:  .............................
191	Claimant's Address:  ..........................
192	.............................................
193	Claimant's Telephone Numbers:
194	Business:  ....
195	Mobile:  ....
196	Home:  ....
197	Claimant's E-mail Address:  ....
198	Motor Vehicle Dealer's Name:  .................
199
200	Motor Vehicle Dealer's Address:  ..............
201	.............................................
202	Describe the Vehicle Involved:
203	Year:  ....Make:  ....Model:  ....
204	Vehicle Identification Number:  ....
205
206	Date of Transaction/Occurrence/Event:  ....
207
208	The document(s) in connection with the
209	transaction/occurrence/event upon which the claim is based are:
210	....(Example: purchase contract, lease, finance agreement,
211	repair order, advertisement, invoice, etc.).....
212	(You must attach a copy of each document.)
213
214	The following is a detailed factual explanation of why the
215	claimant is making this claim:
216
217	Dealer violated section 501.976, Florida Statutes, by:
218
219	(Attach additional pages if necessary.)
220
221	NOTE TO CLAIMANT:  Under Florida's Deceptive and Unfair Trade
222	Practices Act, an aggrieved person is entitled to recover actual
223	damages. Actual damages are defined as the amount of your out-
224	of-pocket costs or losses you claim to have incurred as a direct
225	result of the motor vehicle dealer's conduct in violation of
226	this law, not including legal fees. Actual damages do not
227	include consequential damages such as, but not limited to,
228	emotional distress, time missed from work, inconvenience, pain
229	and suffering, etc.
230
231	Your actual damages total:  $....
232
233	Provide the description and amount of each item that makes up
234	the amount you claim.  (Example: replacement bumper, $100)
235
236	1.  .............................  $....
237	2.  .............................  $....
238	3.  .............................  $....
239	4.  .............................  $....
240	5.  .............................  $....
241	(Attach additional pages if necessary.)
242
243	This notice must be sent to the motor vehicle dealer via
244	certified mail, overnight courier, or hand delivery and must be
245	addressed "Attn: General Manager" or addressed to the Registered
246	Agent for Service of Process of the motor vehicle dealer.
247
248	The motor vehicle dealer has 40 days within which to respond to
249	the damages demand set forth in this notice. If the motor
250	vehicle dealer accepts the damages demand, it must provide you
251	with the settlement proceeds within 10 days after the date of
252	its acceptance. Alternatively, the motor vehicle dealer may
253	offer to rescind a motor vehicle sale or lease transaction. Such
254	acceptance and payment, or rescission, shall be deemed a final
255	settlement and a release of all of your claims against the motor
256	vehicle dealer under all Florida laws in connection with or
257	arising out of the transaction described above.
258
259	I declare under penalty of perjury under the laws of the State
260	of Florida that the foregoing is true and correct.
261
262	Executed on (month)/(day)/(year)
263
264	Claimant Signature:  ........................
265
266	Print Name:  ................................
267
268	(c)  A person convicted of perjury under paragraph (b)
269	shall be subject to the penalty provided in s. 837.012 relating
270	to perjury when not in an official proceeding.
271	(d)  No complaint shall be filed against a motor vehicle
272	dealer seeking relief for a violation of this section if the
273	motor vehicle dealer alleged to have violated this section has,
274	within the 40-day notice period:
275	1.  Agreed in writing to pay the actual damages described
276	in the notice and paid the complainant such damages within 10
277	days after such writing; or
278	2.  Offered in writing to rescind the transaction and
279	return the claimant to his, her, or its financial position prior
280	to the transaction by:
281	a.  Obtaining a discharge of any of the claimant's
282	obligations under any finance or lease agreement and other
283	contracts signed by the claimant at the time of the transaction
284	referred to in the notice; and
285	b.  Returning to the claimant any cash deposited plus
286	either the return of any motor vehicle traded in or the agreed
287	trade-in amount allowed for such trade-in as part of the vehicle
288	sale or lease transaction, plus the documented cost of
289	accessories added to the vehicle by the complainant after the
290	date of the vehicle sale or lease transaction with the motor
291	vehicle dealer, minus, with respect to the motor vehicle
292	described in the notice, an amount equal to the depreciation of
293	the motor vehicle, using the straight-line method over a 4-year
294	expected life of the motor vehicle from the date of the
295	transaction through the date rescission is completed, plus the
296	cost to repair for any physical damage to that motor vehicle,
297	which motor vehicle the claimant shall return to the motor
298	vehicle dealer. In the absence of agreement between the parties
299	about the cost of repair, that amount shall be determined by a
300	motor vehicle repair shop not associated with the motor vehicle
301	dealer. Such motor vehicle repair shop shall be selected by the
302	insurance company providing comprehensive/collision insurance
303	for the motor vehicle, if any, or jointly by the parties or, in
304	the absence of agreement, the claimant and the motor vehicle
305	dealer shall each obtain an estimate from an independent motor
306	vehicle repair shop and the cost of repair shall be the average
307	of the two estimates received.
308
309	The time for completing the payment or rescission shall be
310	extended until the cost of repair has been so determined and, if
311	applicable, to the execution, acknowledgement, and delivery of
312	all documents necessary to return free and clear title and
313	possession of the purchased or leased motor vehicle to the motor
314	vehicle dealer or its nominee.
315	(e)  Payment of the actual damages or rescission shall not
316	constitute an admission by the alleged violator of any
317	wrongdoing or a violation of this section or chapter and shall
318	serve to release and discharge the alleged violator from any
319	suit, action, or other proceeding that could be brought under
320	this section or chapter arising out of or in connection with the
321	transaction described in the notice and from any other claim
322	cognizable under the law of this state in connection with the
323	transaction. Nothing in this paragraph shall limit or prohibit
324	an enforcing authority from exercising its powers as provided in
325	subsection (7).
326	(f)  If the motor vehicle dealer elects to rescind a
327	transaction pursuant to this section, the Department of Revenue
328	shall refund to the motor vehicle dealer any sales tax the motor
329	vehicle dealer refunded to the consumer under this section.
330	(4)(a)  If no complaint is filed, the claimant shall be
331	entitled to receive reasonable attorney's fees for the hours
332	reasonably spent and costs, to the extent such fees and costs
333	actually were incurred, through the date of the payment or
334	rescission.
335	(b)  In any civil litigation resulting from an act or
336	practice involving a violation of this section:
337	1.  After judgment in the trial court and exhaustion of all
338	appeals, if any, the prevailing party may receive his or her
339	reasonable attorney's fees and costs from the nonprevailing
340	party.
341	2.  The attorney for the prevailing party shall submit a
342	sworn affidavit of his or her time spent on the case and his or
343	her costs incurred for all motions, hearings, and appeals to the
344	trial judge who presided over the civil case.
345	3.  The trial judge may award the prevailing party the sum
346	of costs necessarily and reasonably incurred in the action, plus
347	a reasonable legal fee for the hours reasonably spent on the
348	case as sworn to in an affidavit. In determining the
349	reasonableness of hours claimed in the affidavit, the court
350	shall not award any fees or expenses for any hours the court
351	determines, after a hearing, to have been spent preparing or
352	taking any discovery that is determined to have been:
353	a.  Harassing, oppressive, unduly burdensome, unnecessary,
354	or immaterial to the action;
355	b.  Propounded in bad faith or not with the aim of proving
356	the justiciable issues of law or fact set forth in the complaint
357	or answer; or
358	c.  Propounded for the purpose of unreasonably extending
359	the existence of the action.
360
361	In awarding attorney's fees, the court shall give great weight
362	to the nature of the damages claimed in the notice and the
363	amount of actual damages awarded. No multiplier amount shall be
364	applied by the court to any award or attorney's fees under this
365	section.
366	(5)  In any civil action brought under this section, upon
367	motion of the party against whom such action is filed alleging
368	that the action is frivolous, without legal or factual merit, or
369	brought or continued without compliance with this section or
370	unnecessarily or for the purpose of harassment, the court, after
371	hearing evidence with respect to such allegations, shall require
372	the party instituting or continuing the action to post a bond in
373	the amount the court finds reasonable to indemnify the defendant
374	for any damages incurred, including reasonable attorney's fees
375	and costs.
376	(6)  As used in this section, the term "actual damages"
377	means those reasonable out-of-pocket costs or pecuniary loss to
378	the claimant that are directly caused by the alleged violations
379	of this section. Such items shall be detailed in the notice
380	pursuant to paragraph (3)(b).
381	(7)  Nothing in this section shall limit or prohibit an
382	enforcing authority from exercising its powers under part II of
383	this chapter to take action for any violations of law.
384
385	In any civil litigation resulting from a violation of this
386	section, when evaluating the reasonableness of an award of
387	attorney's fees to a private person, the trial court shall
388	consider the amount of actual damages in relation to the time
389	spent.
390	Section 3.  This act shall take effect October 1, 2005.

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