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
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1 Be It Enacted by the Legislature of the State of Florida:
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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
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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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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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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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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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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
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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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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
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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.--
11 (9) DENIAL, SUSPENSION, OR REVOCATION.--
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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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
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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
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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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