Senate Bill sb0780

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    Florida Senate - 2005                                   SB 780

    By Senator Campbell

    32-754-05                                               See HB

  1                      A bill to be entitled

  2         An act relating to the sale of used motor

  3         vehicles; providing a popular name; creating

  4         the "Used Motor Vehicle Warranty Act";

  5         providing legislative intent; providing

  6         definitions; requiring express warranties with

  7         respect to the sale of used motor vehicles;

  8         providing exceptions; providing requirements

  9         for used motor vehicle dealers in honoring

10         warranties; providing for extension of warranty

11         terms under certain circumstances; providing

12         for inability of dealer to conform the motor

13         vehicle to the warranty; providing certain

14         remedies; providing for duties of the

15         Department of Legal Affairs; providing for

16         establishment of resource center and toll-free

17         consumer number; providing liability for

18         bad-faith claims; declaring certain agreements

19         void; declaring violation by a dealer of the

20         act an unfair and deceptive trade practice;

21         providing for application of the Used Motor

22         Vehicle Warranty Act; amending s. 320.27, F.S.;

23         providing additional circumstances under which

24         the Department of Highway Safety and Motor

25         Vehicles may suspend certain vehicle dealers'

26         licenses; providing for collection of a fee on

27         each sale of a used motor vehicle; providing

28         for deposit of fee proceeds into the Motor

29         Vehicle Warranty Trust Fund; providing an

30         effective date.



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    Florida Senate - 2005                                   SB 780
    32-754-05                                               See HB

 1  Be It Enacted by the Legislature of the State of Florida:


 3         Section 1.  Popular name.--Sections 1-12 of this act

 4  may be cited as the "Used Motor Vehicle Warranty Act."

 5         Section 2.  Legislative intent.--The Legislature

 6  recognizes that the procurement of a used motor vehicle is a

 7  major consumer purchase and that a defective used motor

 8  vehicle undoubtedly creates a hardship for the consumer. The

 9  Legislature recognizes that a dealer has superior knowledge

10  about the structural and mechanical condition of a used motor

11  vehicle which a consumer relies upon when purchasing such

12  vehicle. The Legislature also recognizes that a dealer has

13  superior knowledge of the warranty terms arising from the sale

14  of a used motor vehicle which a consumer relies upon when

15  purchasing such vehicle. It is the intent of the Legislature

16  to provide minimum warranty rights to consumers who purchase

17  used motor vehicles from dealers in this state. It is further

18  the intent of the Legislature that a consumer receive a

19  comparable motor vehicle or a full refund when a good faith

20  warranty complaint cannot be resolved within a specified

21  period of time. However, this act does not limit or expand the

22  rights or remedies that are otherwise available to a consumer

23  under any other law.

24         Section 3.  Definitions.--As used in this act, the

25  term:

26         (1)  "Collateral expenses" means those additional

27  expenses incurred by the consumer as a result of acquiring the

28  motor vehicle, and all earned finance and credit charges

29  incurred by the consumer.

30         (2)  "Comparable motor vehicle" means, with respect to

31  a replacement motor vehicle, a used motor vehicle similar or


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    Florida Senate - 2005                                   SB 780
    32-754-05                                               See HB

 1  equivalent in price to the price for which the replaced motor

 2  vehicle was purchased.

 3         (3)  "Consumer" means any person who is not a dealer as

 4  defined in section 320.27(1)(c), Florida Statutes, excluding

 5  any person who has purchased a leased vehicle as a result of

 6  the exercise of a purchase option in a lease-purchase

 7  agreement that has a lease term of 1 year or more.

 8         (4)  "Dealer" means a motor vehicle dealer as defined

 9  in section 320.27(1)(c), Florida Statutes, and subject to

10  licensure under section 320.27(2), Florida Statutes.

11         (5)  "Department" means the Department of Legal

12  Affairs.

13         (6)  "Incidental expenses" means those reasonable costs

14  incurred by the consumer which are directly caused by a defect

15  in or condition of the vehicle.

16         (7)  "Motor vehicle" means a motor vehicle propelled by

17  power other than muscular power, which is sold in this state,

18  with a gross vehicle weight rating of less than 8,500 lbs.,

19  but excludes recreational vehicles, motorcycles, mopeds,

20  traction engines, truck tractors, road rollers, trailers, and

21  semitrailers, off-road vehicles, and vehicles run only upon

22  tracks or water.

23         (8)  "Purchase price" means the cash price as defined

24  in section 520.31(2), Florida Statutes, inclusive of any net

25  allowance for a trade-in vehicle.

26         (9)  "Reasonable offset for use" means an amount not

27  exceeding 10 cents per mile driven or 10 percent of the

28  purchase price, whichever is less.

29         (10)  "Service contract" means a written contract to

30  perform, over a fixed period of time or for a specified



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    Florida Senate - 2005                                   SB 780
    32-754-05                                               See HB

 1  duration, services relating to the maintenance or repair, or

 2  both, of a consumer product.

 3         (11)  "Used motor vehicle" means a used or secondhand

 4  motor vehicle as defined in section 320.60(13), Florida

 5  Statutes.

 6         (12)  "Warranty" means any undertaking in writing,

 7  excluding a service contract, in connection with the sale by a

 8  dealer of a used motor vehicle, to refund, repair, replace,

 9  maintain, or take other action with respect to a used motor

10  vehicle and provided at no extra charge beyond the purchase

11  price, or any affirmation of fact or promise made by the

12  dealer in connection with the sale of a used motor vehicle to

13  a consumer upon which the consumer relied in entering into the

14  transaction.

15         Section 4.  Express warranties.--

16         (1)  Each contract entered into by a dealer for the

17  sale to a consumer of a used motor vehicle pursuant to this

18  act must include an express warranty, covering the full cost

19  of both parts and labor, that the vehicle is both structurally

20  and mechanically operational and sound and will remain so for

21  at least 60 days or 3,000 miles of operation, whichever period

22  ends first, but excluding routine maintenance items and damage

23  resulting from an accident or neglect or abuse of the vehicle

24  by the consumer, and that the dealer shall repair or replace

25  any defect or condition, or, at the dealer's option, accept

26  return of the used motor vehicle from the consumer and replace

27  the vehicle with a comparable motor vehicle acceptable to the

28  consumer or provide a refund of the purchase price.

29         (2)  An express warranty required pursuant to this

30  section may not contain language that attempts to exclude or



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    Florida Senate - 2005                                   SB 780
    32-754-05                                               See HB

 1  modify the consumer's remedy for breach of an express

 2  warranty.

 3         (3)  A dealer may not limit a warranty required by this

 4  section by the use of such phrases as "fifty-fifty," "labor

 5  only," "drive train only," or other words attempting to

 6  disclaim the dealer's responsibility.

 7         (4)  The consumer may waive a warranty required by this

 8  section only as to a particular defect in the vehicle which

 9  the dealer has disclosed to the consumer as being defective.

10  Such waiver is not effective unless the waiver:

11         (a)  Is in writing.

12         (b)  Is conspicuous and in plain language.

13         (c)  Identifies the particular disclosed defect in the

14  vehicle for which such warranty is to be waived.

15         (d)  Is signed by both the consumer and dealer prior to

16  sale.

17         (5)  This section does not apply to:

18         (a)  The sale of a used motor vehicle having a purchase

19  price of less than $2,000; or

20         (b)  The sale of a used motor vehicle with over 100,000

21  miles at the time of sale if the mileage is indicated in

22  writing at the time of sale. If the true mileage of the

23  vehicle is unknown, the exemption provided by this paragraph

24  does not apply.

25         (6)  Except as otherwise provided, the obligations of a

26  manufacturer under an express warranty issued by the

27  manufacturer are not diminished. The warranty created by this

28  section does not require a nonauthorized dealer to repair a

29  defect or condition if the defect or condition is covered by a

30  manufacturer's warranty, or the manufacturer otherwise agrees

31  to repair, unless the manufacturer or its agent refuses or is


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    Florida Senate - 2005                                   SB 780
    32-754-05                                               See HB

 1  unable to repair. Repairs by a manufacturer or dealer under

 2  this subsection may be considered as repair attempts under

 3  section 7.

 4         Section 5.  Duty of dealer.--

 5         (1)  A dealer or his or her agent shall honor any

 6  warranty required by section 4, notwithstanding the fact that

 7  the warranty period has expired, if the consumer notifies the

 8  dealer of a defect or condition within the applicable warranty

 9  period.

10         (2)  If a dealer does not have a repair facility, the

11  dealer shall designate a reasonably accessible facility where

12  the vehicle must be taken for repair.

13         (3)  If the defect or condition occurs at a location

14  that makes it impossible or unreasonable to return the vehicle

15  to the dealer, the consumer may have the repair completed

16  elsewhere with the consent of the dealer, which consent may

17  not be unreasonably withheld.

18         (4)  If a dealer fails to provide the written warranty

19  as required by section 4, the dealer is deemed to have given

20  such warranty.

21         (5)  A dealer or the dealer's agent shall provide to

22  the consumer, each time a used motor vehicle is returned for

23  examination or repair under the warranty, a fully itemized,

24  legible statement or repair order indicating any test drive

25  performed and the approximate length of the test drive, any

26  diagnosis made, and all work performed on the vehicle,

27  including, but not limited to, a general description of the

28  problem reported by the consumer or an identification of the

29  defect or condition, parts and labor, the date, the odometer

30  reading when the motor vehicle was submitted for examination



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    Florida Senate - 2005                                   SB 780
    32-754-05                                               See HB

 1  or repair, and the date when the repair or examination was

 2  completed.

 3         (6)  A dealer may not refuse any consumer the

 4  opportunity to have an independent prepurchase inspection of

 5  any used motor vehicle offered for sale. If the consumer

 6  requests an inspection, it shall be conducted by a person

 7  chosen by the consumer, but the dealer may establish

 8  reasonable conditions regarding the place, time, and extent of

 9  the inspection.

10         Section 6.  Extension of warranty term.--

11         (1)  The term of any warranty required by section 4

12  shall be extended by any time period during which the used

13  motor vehicle is in the possession of the dealer or the

14  dealer's agent for the purpose of repairing the used motor

15  vehicle under the terms and obligations of the warranty.

16         (2)  The term of the warranty shall be extended by any

17  time period during which the consumer has requested the dealer

18  or the dealer's agent to repair the vehicle under the terms

19  and provisions of the warranty and the repairs are not made or

20  replacement parts are not available.

21         (3)  The term of any such warranty shall be extended by

22  any time during which repair services are not available to the

23  consumer due to war, invasion, strike, fire, flood, or natural

24  disaster.

25         Section 7.  Inability of the dealer to conform the

26  motor vehicle to the warranty.--

27         (1)  If the dealer is unable to conform the motor

28  vehicle to the terms of the warranty by curing any defect or

29  condition that substantially impairs the use, value, or safety

30  of the vehicle after a reasonable number of attempts, the

31  dealer, at the dealer's option, shall either replace the motor


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    Florida Senate - 2005                                   SB 780
    32-754-05                                               See HB

 1  vehicle with a comparable motor vehicle acceptable to the

 2  consumer or refund to the consumer the purchase price and all

 3  reasonably incurred collateral and incidental expenses, less a

 4  reasonable offset for use. A refund shall be made to the

 5  consumer and lienholder of record, if any, as their interests

 6  may appear. Upon receipt of such refund or replacement, the

 7  consumer or lienholder must furnish to the dealer clear title

 8  to and possession of the motor vehicle. The Department of

 9  Revenue shall refund to the dealer any sales tax which the

10  dealer refunded the consumer or lienholder under this section,

11  if the dealer provides to the Department of Revenue a written

12  request for a refund and evidence that the sales tax was paid

13  when the vehicle was purchased and that the dealer refunded

14  the sales tax to the consumer or lienholder.

15         (2)  It shall be presumed that there has been a

16  reasonable opportunity to correct a defect or condition within

17  the term of the warranty as set forth under section 4(1) and

18  section 6 if:

19         (a)  The same defect or condition has been subject to

20  repair three or more times and such defect or condition

21  continues to exist; or

22         (b)  The vehicle has been out of service by reason of

23  repair for a cumulative total of 15 or more days.

24         Section 8.  Consumer remedies.--

25         (1)  Any violation of this act by a dealer for which a

26  consumer suffers any loss constitutes a violation of chapter

27  320, Florida Statutes, for which a consumer may resort to the

28  provisions of section 320.27, Florida Statutes, for relief.

29         (2)  A consumer may file an action to recover damages

30  caused by a violation of this act. The court shall award a

31  consumer who prevails in such action damages, costs,


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    Florida Senate - 2005                                   SB 780
    32-754-05                                               See HB

 1  reasonable attorney's fees, and appropriate equitable relief.

 2  If the consumer establishes that the dealer's failure to

 3  comply with this chapter was willful, the judgment may include

 4  a civil penalty which shall not exceed two times the amount of

 5  actual damages.

 6         (3)  An action brought under this act must be commenced

 7  within 6 months from the expiration of the warranty, or 1 year

 8  from the date of purchase, whichever occurs later.

 9         (4)  This act does not prohibit a consumer from

10  pursuing other rights or remedies under any other law.

11         Section 9.  Department duties.--

12         (1)  The Department of Legal Affairs shall establish a

13  resource center which, at a minimum, shall include a toll-free

14  number which a consumer can contact for information concerning

15  the consumer's rights or to file a complaint under this act.

16         (2)  The department shall prepare brochures and other

17  educational materials to be distributed to consumers informing

18  them of their rights and remedies under this act.

19         (3)  The department may contract with an independent

20  entity to perform the services pursuant to this section.

21         Section 10.  Bad-faith claims.--Any claim by a consumer

22  which is found by the court to have been filed in bad faith or

23  solely for the purpose of harassment shall result in the

24  consumer being liable for costs and reasonable attorney's fees

25  incurred by the dealer, as a direct result of the bad-faith

26  claim.

27         Section 11.  Certain agreements void.--Except as

28  otherwise provided in this act, any agreement entered into by

29  a consumer that waives, limits, or disclaims the rights set

30  forth in this act is void as contrary to public policy.



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    Florida Senate - 2005                                   SB 780
    32-754-05                                               See HB

 1         Section 12.  Unfair or deceptive trade practice.--A

 2  violation by a dealer of this act is an unfair and deceptive

 3  trade practice as defined in part II of chapter 501, Florida

 4  Statutes.

 5         Section 13.  The Used Motor Vehicle Warranty Act

 6  applies to used motor vehicles sold in this state on or after

 7  January 1, 2006.

 8         Section 14.  Paragraph (b) of subsection (9) of section

 9  320.27, Florida Statutes, is amended to read:

10         320.27  Motor vehicle dealers.--


12         (b)  The department may deny, suspend, or revoke any

13  license issued hereunder or under the provisions of s. 320.77

14  or s. 320.771 upon proof that a licensee has committed, with

15  sufficient frequency so as to establish a pattern of

16  wrongdoing on the part of a licensee, violations of one or

17  more of the following activities:

18         1.  Representation that a demonstrator is a new motor

19  vehicle, or the attempt to sell or the sale of a demonstrator

20  as a new motor vehicle without written notice to the purchaser

21  that the vehicle is a demonstrator. For the purposes of this

22  section, a "demonstrator," a "new motor vehicle," and a "used

23  motor vehicle" shall be defined as under s. 320.60.

24         2.  Unjustifiable refusal to comply with a licensee's

25  responsibility under the terms of the new motor vehicle

26  warranty issued by its respective manufacturer, distributor,

27  or importer. However, if such refusal is at the direction of

28  the manufacturer, distributor, or importer, such refusal shall

29  not be a ground under this section.

30         3.  Misrepresentation or false, deceptive, or

31  misleading statements with regard to the sale or financing of


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    Florida Senate - 2005                                   SB 780
    32-754-05                                               See HB

 1  motor vehicles which any motor vehicle dealer has, or causes

 2  to have, advertised, printed, displayed, published,

 3  distributed, broadcast, televised, or made in any manner with

 4  regard to the sale or financing of motor vehicles.

 5         4.  Failure by any motor vehicle dealer to provide a

 6  customer or purchaser with an odometer disclosure statement

 7  and a copy of any bona fide written, executed sales contract

 8  or agreement of purchase connected with the purchase of the

 9  motor vehicle purchased by the customer or purchaser.

10         5.  Failure of any motor vehicle dealer to comply with

11  the terms of any bona fide written, executed agreement,

12  pursuant to the sale of a motor vehicle.

13         6.  Failure to apply for transfer of a title as

14  prescribed in s. 319.23(6).

15         7.  Use of the dealer license identification number by

16  any person other than the licensed dealer or his or her

17  designee.

18         8.  Failure to continually meet the requirements of the

19  licensure law.

20         9.  Representation to a customer or any advertisement

21  to the public representing or suggesting that a motor vehicle

22  is a new motor vehicle if such vehicle lawfully cannot be

23  titled in the name of the customer or other member of the

24  public by the seller using a manufacturer's statement of

25  origin as permitted in s. 319.23(1).

26         10.  Requirement by any motor vehicle dealer that a

27  customer or purchaser accept equipment on his or her motor

28  vehicle which was not ordered by the customer or purchaser.

29         11.  Requirement by any motor vehicle dealer that any

30  customer or purchaser finance a motor vehicle with a specific

31  financial institution or company.


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    Florida Senate - 2005                                   SB 780
    32-754-05                                               See HB

 1         12.  Requirement by any motor vehicle dealer that the

 2  purchaser of a motor vehicle contract with the dealer for

 3  physical damage insurance.

 4         13.  Perpetration of a fraud upon any person as a

 5  result of dealing in motor vehicles, including, without

 6  limitation, the misrepresentation to any person by the

 7  licensee of the licensee's relationship to any manufacturer,

 8  importer, or distributor.

 9         14.  Violation of any of the provisions of s. 319.35 by

10  any motor vehicle dealer.

11         15.  Sale by a motor vehicle dealer of a vehicle

12  offered in trade by a customer prior to consummation of the

13  sale, exchange, or transfer of a newly acquired vehicle to the

14  customer, unless the customer provides written authorization

15  for the sale of the trade-in vehicle prior to delivery of the

16  newly acquired vehicle.

17         16.  Willful failure to comply with any administrative

18  rule adopted by the department.

19         17.  Violation of chapter 319, this chapter, or ss.

20  559.901-559.9221, which has to do with dealing in or repairing

21  motor vehicles or mobile homes. Additionally, in the case of

22  used motor vehicles, the willful violation of the federal law

23  and rule in 15 U.S.C. s. 2304, 16 C.F.R. part 455, pertaining

24  to the consumer sales window form.

25         18.  Failure to comply with the terms of the Used Motor

26  Vehicle Warranty Act.

27         19.  Failure to comply with a court decision rendered

28  pursuant to the Used Motor Vehicle Warranty Act, irrespective

29  of whether the failure occurs with sufficient frequency so as

30  to establish a pattern of wrongdoing on the part of the

31  licensee.


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    Florida Senate - 2005                                   SB 780
    32-754-05                                               See HB

 1         20.  Failure to display the Buyer's Guide set forth in

 2  Title 16, Code of Federal Regulations, Part 455.

 3         Section 15.  Fees.--A $1 fee shall be collected by a

 4  motor vehicle dealer from the consumer at the consummation of

 5  the sale of a used motor vehicle. Such fees shall be remitted

 6  to the county tax collector acting as agent for the

 7  department. All fees shall be transferred to the Department of

 8  Legal Affairs for deposit into the Motor Vehicle Warranty

 9  Trust Fund.

10         Section 16.  This act shall take effect July 1, 2005.























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