Senate Bill sb2496
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Florida Senate - 2006 SB 2496
By Senator Aronberg
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1 A bill to be entitled
2 An act relating to deceptive and unfair trade
3 practices; amending s. 501.975, F.S.; providing
4 definitions for part VI of ch. 501, F.S.;
5 creating s. 501.9755, F.S.; declaring that
6 unfair methods of competition, unconscionable
7 acts or practices, and unfair or deceptive acts
8 or practices used by motor vehicle dealers are
9 unlawful; providing legislative intent;
10 amending s. 501.976, F.S.; providing an
11 exception to the requirement that a contract be
12 fully complete before a customer signs a motor
13 vehicle dealer's contract; creating s.
14 501.9765, F.S.; providing that a motor vehicle
15 dealer who willfully uses a method or practice
16 that victimizes or attempts to victimize senior
17 citizens or handicapped persons commits an
18 unfair or deceptive trade practice; providing a
19 civil penalty; providing for reimbursement or
20 restitution; creating s. 501.977, F.S.;
21 providing additional remedies against a motor
22 vehicle dealer; creating s. 501.978, F.S.;
23 providing that the remedies of part VI of ch.
24 501, F.S., are in addition to remedies
25 otherwise available for the same conduct under
26 state or local law and do not preempt local
27 consumer-protection ordinances not in conflict
28 with part VI of ch. 501, F.S.; creating s.
29 501.979, F.S.; providing for attorney's fees
30 for a prevailing party; providing procedures
31 for receiving attorney's fees; authorizing the
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1 Department of Legal Affairs or the office of
2 the state attorney to receive attorney's fees
3 under certain circumstances; creating s.
4 501.980, F.S.; requiring that, as a condition
5 precedent to initiating civil litigation
6 arising under part VI of ch. 501, F.S., a
7 claimant give the motor vehicle dealer written
8 notice of the claimant's intent to initiate
9 litigation against the motor vehicle dealer not
10 less than 30 days before initiating the
11 litigation; providing for the content of the
12 notice of claim and the method by which the
13 notice of claim is given to the motor vehicle
14 dealer; providing that if the claim is paid by
15 the motor vehicle dealer within 30 days after
16 receiving the notice of claim, together with a
17 surcharge of 10 percent of the alleged actual
18 damages, the claimant may not initiate
19 litigation against the motor vehicle dealer,
20 and the motor vehicle dealer is obligated to
21 pay only $500 for the attorney's fees of the
22 claimant; providing that the surcharge not
23 exceed $500; providing procedures for damage
24 claims that are nonquantifiable; providing
25 expedited procedures when the claimant is
26 without access to a motor vehicle; providing
27 that a claimant is not entitled to a surcharge
28 under certain circumstances; providing that a
29 motor vehicle dealer is not obligated to pay
30 the claimant's attorney's fees under certain
31 circumstances; providing that the
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1 presuit-notification procedures apply to class
2 actions; providing that any applicable statute
3 of limitations is tolled for 30 days for
4 individual claims and 90 days for class action
5 claims; providing that the act does not affect
6 the statutory responsibilities of the Attorney
7 General or the office of the state attorney;
8 requiring a court to abate litigation, without
9 prejudice, until the claimant has complied with
10 the required procedures; amending s. 501.212,
11 F.S.; exempting motor vehicle dealers from the
12 provisions of part II of ch. 501, F.S.;
13 providing an exception for the enforcing
14 authority; providing an effective date.
15
16 Be It Enacted by the Legislature of the State of Florida:
17
18 Section 1. Section 501.975, Florida Statutes, is
19 amended to read:
20 501.975 Definitions.--As used in this part s. 501.976,
21 the term following terms shall have the following meanings:
22 (1) "Customer" includes a customer's designated agent.
23 (2) "Dealer" means a motor vehicle dealer as defined
24 in s. 320.27, but does not include a motor vehicle auction as
25 defined in s. 320.27(1)(c)4.
26 (3) "Replacement item" means a tire, bumper, bumper
27 fascia, glass, in-dashboard equipment, seat or upholstery
28 cover or trim, exterior illumination unit, grill, sunroof,
29 external mirror and external body cladding. The replacement of
30 up to three of these items does not constitute repair of
31 damage if each item is replaced because of a product defect or
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1 damaged due to vandalism while the new motor vehicle is under
2 the control of the dealer and the items are replaced with
3 original manufacturer equipment, unless an item is replaced
4 due to a crash, collision, or accident.
5 (4) "Threshold amount" means 3 percent of the
6 manufacturer's suggested retail price of a motor vehicle or
7 $650, whichever is less.
8 (5) "Vehicle" means any automobile, truck, bus,
9 recreational vehicle, or motorcycle required to be licensed
10 under chapter 320 for operation over the roads of Florida, but
11 does not include trailers, mobile homes, travel trailers, or
12 trailer coaches without independent motive power.
13 Section 2. Section 501.9755, Florida Statutes, is
14 created to read:
15 501.9755 Unlawful acts and practices.--
16 (1) Unfair methods of competition, unconscionable acts
17 or practices, and unfair or deceptive acts or practices in the
18 conduct of any trade or commerce by a dealer are unlawful.
19 (2) It is the intent of the Legislature that, in
20 construing subsection (1), due consideration and great weight
21 be given to the interpretations of the Federal Trade
22 Commission and the federal courts relating to s. 5(a)(1) of
23 the Federal Trade Commission Act, 15 U.S.C. s. 45(a)(1).
24 Section 3. Section 501.976, Florida Statutes, is
25 amended to read:
26 501.976 Actionable, unfair, or deceptive acts or
27 practices.--In addition to acts and practices actionable under
28 s. 501.9755, it is an unfair or deceptive act or practice,
29 actionable under the Florida Deceptive and Unfair Trade
30 Practices Act, for a dealer to:
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1 (1) Represent directly or indirectly that a motor
2 vehicle is a factory executive vehicle or executive vehicle
3 unless the such vehicle was purchased directly from the
4 manufacturer or a subsidiary of the manufacturer and the
5 vehicle was used exclusively by the manufacturer, its
6 subsidiary, or a dealer for the commercial or personal use of
7 the manufacturer's, subsidiary's, or dealer's employees.
8 (2) Represent directly or indirectly that a vehicle is
9 a demonstrator unless the vehicle complies with the definition
10 of a demonstrator in s. 320.60(3).
11 (3) Represent the previous usage or status of a
12 vehicle to be something that it was not, or make usage or
13 status representations unless the dealer has correct
14 information regarding the history of the vehicle to support
15 the representations.
16 (4) Represent the quality of care, regularity of
17 servicing, or general condition of a vehicle unless known by
18 the dealer to be true and supportable by material fact.
19 (5) Represent orally or in writing that a particular
20 vehicle has not sustained structural or substantial skin
21 damage unless the statement is made in good faith and the
22 vehicle has been inspected by the dealer or his or her agent
23 to determine whether the vehicle has incurred such damage.
24 (6) Sell a vehicle without fully and conspicuously
25 disclosing in writing at or before the consummation of sale
26 any warranty or guarantee terms, obligations, or conditions
27 that the dealer or manufacturer has given to the buyer. If the
28 warranty obligations are to be shared by the dealer and the
29 buyer, the method of determining the percentage of repair
30 costs to be assumed by each party must be disclosed. If the
31 dealer intends to disclaim or limit any expressed or implied
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1 warranty, the disclaimer must be in writing in a conspicuous
2 manner and in lay terms in accordance with chapter 672 and the
3 Magnuson-Moss Warranty--Federal Trade Commission Improvement
4 Act.
5 (7) Provide an express or implied warranty and fail to
6 honor such warranty unless properly disclaimed pursuant to
7 subsection (6).
8 (8) Misrepresent warranty coverage, application
9 period, or any warranty transfer cost or conditions to a
10 customer.
11 (9) Obtain signatures from a customer on contracts
12 that are not fully completed at the time the customer signs or
13 which do not reflect accurately the negotiations and agreement
14 between the customer and the dealer. However, this subsection
15 does not apply if, at the time of the transaction, the
16 customer acknowledges in writing, separate from any other
17 text, having read substantially the following notice:
18 STATUTORY CONSUMER NOTICE: A vehicle
19 purchase or lease is a substantial transaction.
20 Do not execute any sale or lease document if it
21 is not fully completed or does not accurately
22 reflect your agreement with the motor vehicle
23 dealer. If you suffer any damages as a result
24 of improper actions of the motor vehicle
25 dealer, relief may be available to you under
26 the laws of this state including part VI of
27 chapter 501, Florida Statutes.
28 (10) Require or accept a deposit from a prospective
29 customer prior to entering into a binding contract for the
30 purchase and sale of a vehicle unless the customer is given a
31 written receipt that states how long the dealer will hold the
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1 vehicle from other sale and the amount of the deposit, and
2 clearly and conspicuously states whether and upon what
3 conditions the deposit is refundable or nonrefundable.
4 (11) Add to the cash price of a vehicle as defined in
5 s. 520.02(2) any fee or charge other than those provided in
6 that section and in rule 3D-50.001, Florida Administrative
7 Code. All fees or charges permitted to be added to the cash
8 price by rule 3D-50.001, Florida Administrative Code, must be
9 fully disclosed to customers in all binding contracts
10 concerning the vehicle's selling price.
11 (12) Alter or change the odometer mileage of a vehicle
12 except in compliance with 49 U.S.C. s. 32704.
13 (13) Sell a vehicle without disclosing to the customer
14 the actual year and model of the vehicle.
15 (14) File a lien against a new vehicle purchased with
16 a check unless the dealer fully discloses to the purchaser
17 that a lien will be filed if purchase is made by check and
18 fully discloses to the buyer the procedures and cost to the
19 buyer for gaining title to the vehicle after the lien is
20 filed.
21 (15) Increase the price of the vehicle after having
22 accepted an order of purchase or a contract from a buyer,
23 notwithstanding subsequent receipt of an official price change
24 notification. The price of a vehicle may be increased after a
25 dealer accepts an order of purchase or a contract from a buyer
26 if:
27 (a) A trade-in vehicle is reappraised because it
28 subsequently is damaged, or parts or accessories are removed;
29 (b) The price increase is caused by the addition of
30 new equipment, as required by state or federal law;
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1 (c) The price increase is caused by the revaluation of
2 the United States dollar by the Federal Government, in the
3 case of a foreign-made vehicle;
4 (d) The price increase is caused by state or federal
5 tax rate changes; or
6 (e) Price protection is not provided by the
7 manufacturer, importer, or distributor.
8 (16) Advertise the price of a vehicle unless the
9 vehicle is identified by year, make, model, and a commonly
10 accepted trade, brand, or style name. The advertised price
11 must include all fees or charges that the customer must pay,
12 including freight or destination charge, dealer preparation
13 charge, and charges for undercoating or rustproofing. State
14 and local taxes, tags, registration fees, and title fees,
15 unless otherwise required by local law or standard, need not
16 be disclosed in the advertisement. When two or more dealers
17 advertise jointly, with or without participation of the
18 franchisor, the advertised price need not include fees and
19 charges that are variable among the individual dealers
20 cooperating in the advertisement, but the nature of all
21 charges that are not included in the advertised price must be
22 disclosed in the advertisement.
23 (17) Charge a customer for any predelivery service
24 required by the manufacturer, distributor, or importer for
25 which the dealer is reimbursed by the manufacturer,
26 distributor, or importer.
27 (18) Charge a customer for any predelivery service
28 without having printed on all documents that include a line
29 item for predelivery service the following disclosure: "This
30 charge represents costs and profit to the dealer for items
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1 such as inspecting, cleaning, and adjusting vehicles, and
2 preparing documents related to the sale."
3 (19) Fail to disclose damage to a new motor vehicle,
4 as defined in s. 319.001(8), of which the dealer had actual
5 knowledge, if the dealer's actual cost of repairs exceeds the
6 threshold amount, excluding replacement items.
7
8 In any civil litigation resulting from a violation of this
9 section, when evaluating the reasonableness of an award of
10 attorney's fees to a private person, the trial court shall
11 consider the amount of actual damages in relation to the time
12 spent.
13 Section 4. Section 501.9765, Florida Statutes, is
14 created to read:
15 501.9765 Violations involving a senior citizen or
16 handicapped person; civil penalties; presumption.--
17 (1) As used in this section, the term:
18 (a) "Senior citizen" means a person who is 60 years of
19 age or older.
20 (b) "Handicapped person" means any person who has a
21 mental or educational impairment that substantially limits one
22 or more major life activities.
23 (c) "Mental or educational impairment" means:
24 1. Any mental or psychological disorder or specific
25 learning disability.
26 2. Any educational deficiency that substantially
27 affects a person's ability to read and comprehend the terms of
28 any contractual agreement entered into.
29 (d) "Major life activities" means functions associated
30 with the normal activities of independent daily living such as
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1 caring for oneself, performing manual tasks, walking, seeing,
2 hearing, speaking, breathing, learning, and working.
3 (2) Any person who willfully uses, or has willfully
4 used, a method, act, or practice in violation of this part,
5 which method, act, or practice victimizes or attempts to
6 victimize a senior citizen or handicapped person, and commits
7 such violation when she or he knew or should have known that
8 her or his conduct was unfair or deceptive, is liable for a
9 civil penalty of not more than $15,000 for each such
10 violation.
11 (3) Any order of restitution or reimbursement based on
12 a violation of this part committed against a senior citizen or
13 handicapped person has priority over the imposition of civil
14 penalties for violations of this section.
15 (4) Civil penalties collected under this section shall
16 be deposited into the Legal Affairs Revolving Trust Fund of
17 the Department of Legal Affairs and allocated to the
18 Department of Legal Affairs solely for the purpose of
19 preparing and distributing consumer-education materials,
20 programs, and seminars to benefit senior citizens and
21 handicapped persons or to enhance efforts to enforce this
22 section.
23 Section 5. Section 501.977, Florida Statutes, is
24 created to read:
25 501.977 Other individual remedies.--
26 (1) Without regard to any other remedy or relief to
27 which a person is entitled, anyone aggrieved by a violation of
28 this part by a dealer may bring an action against the dealer
29 in order to obtain a declaratory judgment that an act or
30 practice violates this part and to enjoin a dealer who has
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1 violated, is violating, or is otherwise likely to violate,
2 this part.
3 (2) In any action brought by a person who has suffered
4 a loss as a result of a violation of this part, the person may
5 recover actual damages, plus attorney's fees and court costs
6 as provided in s. 501.979. However, damages, fees, or costs
7 are not recoverable under this section against a dealer who
8 has, in good faith, engaged in the dissemination of claims of
9 a manufacturer or wholesaler without actual knowledge that
10 doing so violates this part.
11 (3) In any action brought under this section, if,
12 after the filing of a motion by the dealer, the court finds
13 that the action is frivolous, without legal or factual merit,
14 or brought for the purpose of harassment, the court may, after
15 hearing evidence as to the necessity therefor, require the
16 party instituting the action to post a bond in the amount that
17 the court finds reasonable to indemnify the defendant for any
18 costs incurred, or to be incurred, including reasonable
19 attorney's fees in defending the claim. This subsection does
20 not apply to any action initiated by the enforcing authority.
21 Section 6. Section 501.978, Florida Statutes, is
22 created to read:
23 501.978 Effect on other remedies.--
24 (1) The remedies of this part are in addition to
25 remedies otherwise available for the same conduct under state
26 or local law.
27 (2) This part is supplemental to, and does not
28 preempt, local consumer-protection ordinances not inconsistent
29 with this part.
30 Section 7. Section 501.979, Florida Statutes, is
31 created to read:
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1 501.979 Attorney's fees.--
2 (1) In any civil litigation resulting from an act or
3 practice involving a violation of this part, except as
4 provided in subsection (5), the prevailing party, after
5 judgment in the trial court and exhaustion of all appeals, if
6 any, may receive his or her reasonable attorney's fees and
7 costs from the nonprevailing party.
8 (2) The attorney for the prevailing party shall submit
9 a sworn affidavit of his or her time spent on the case and his
10 or her costs incurred for all the motions, hearings, and
11 appeals to the trial judge who presided over the civil case.
12 (3) The trial judge may award the prevailing party the
13 sum of reasonable costs incurred in the action, plus
14 reasonable attorney's fees for the hours actually spent on the
15 case as sworn to in an affidavit.
16 (4) Any award of attorney's fees or costs becomes a
17 part of the judgment and is subject to execution as the law
18 allows.
19 (5) In any civil litigation initiated by the enforcing
20 authority, the court may award to the prevailing party
21 reasonable attorney's fees and costs if the court finds that
22 there was a complete absence of a justiciable issue of law or
23 fact raised by the losing party or if the court finds bad
24 faith on the part of the losing party.
25 (6) In any administrative proceeding or other
26 nonjudicial action initiated by an enforcing authority, the
27 attorney for the enforcing authority may certify by sworn
28 affidavit the number of hours and the cost thereof to the
29 enforcing authority for the time spent in the investigation
30 and litigation of the case, plus costs reasonably incurred in
31 the action. Payment to the enforcing authority of the sum of
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1 the costs may be made, by stipulation of the parties a part,
2 of the final order or decree disposing of the matter. The
3 affidavit shall be attached to and become a part of the order
4 or decree.
5 Section 8. Section 501.980, Florida Statutes, is
6 created to read:
7 501.980 Demand letter.--
8 (1) As a condition precedent to initiating any civil
9 litigation arising under this part, a claimant must give the
10 dealer written notice of the claimant's intent to initiate
11 litigation against the dealer not less than 30 days before
12 initiating the litigation.
13 (2) The notice, which must be completed in good faith,
14 must:
15 (a) State that it is a demand letter under s. 501.980;
16 (b) State the name, address, and telephone number of
17 the claimant;
18 (c) State the name and address of the dealer;
19 (d) Provide the date and a description of the
20 transaction, event, or circumstance that is the basis of the
21 claim;
22 (e) Describe with specificity the underlying facts and
23 how they give rise to an alleged violation of this part;
24 (f) To the extent applicable, be accompanied by all
25 transaction or other documents upon which the claim is based
26 or upon which the claimant is relying to assert the claim;
27 (g) Include a statement describing and providing the
28 amount of each item of actual damages demanded by the claimant
29 and recoverable under this part. However, to the extent the
30 claimant cannot in good faith quantify any item of actual
31 damage as required, the claimant shall provide a comprehensive
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1 description of the item of damage or a formula or basis by
2 which the dealer may calculate the damage; and
3 (h) Include a description of reasonable attorney's
4 fees incurred, if any, for which reimbursement, not to exceed
5 $500, is sought.
6 (3)(a) The notice of the claim must be delivered to
7 the dealer by certified or registered United States mail,
8 return receipt requested. The postal costs shall be reimbursed
9 to the claimant by the dealer if the dealer pays the claim and
10 if the claimant requests reimbursement of the postal costs in
11 the notice of claim.
12 (b) If the dealer is a corporate entity, the notice of
13 claim must be sent to the registered agent of the dealer as
14 recorded with the Department of State and, in the absence of a
15 registered agent, any person listed in s. 48.081(1).
16 (4) A claimant may not initiate litigation against a
17 dealer for a claim arising under this part related to the
18 transaction or event described in the notice of claim if the
19 dealer pays the claimant within 30 days after receiving the
20 notice of claim:
21 (a) The amount requested in the demand letter as
22 specified in paragraph (2)(g);
23 (b) A surcharge of 10 percent of the amount requested
24 in the demand letter, not to exceed $500; and
25 (c) The attorney's fees of the claimant as specified
26 in paragraph (2)(h), not to exceed $500.
27 (5)(a) Subsection (4) does not apply if the notice of
28 claim specifies nonquantified items of damage. However, the
29 dealer may notify the claimant in writing within 30 days after
30 receiving the notice of claim that the dealer proposes to pay
31 the claim with modifications. The dealer must inform the
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1 claimant that he or she has placed a value on the
2 nonquantified items of damage and intends to pay that amount
3 in addition to the payments described in subsection (4).
4 (b) The claimant must accept or reject, in writing,
5 the offer of the dealer within 10 business days.
6 (c) Upon receipt of the notice of acceptance, the
7 dealer must pay the claimant the amount set forth in the
8 proposal within 10 business days.
9 (d) A claimant may not initiate litigation against the
10 dealer for a claim under this part which is related to the
11 transaction or event described in the notice of claim unless:
12 1. The dealer ignores, rejects, or fails to timely
13 respond to the claimant's demand, or fails to pay within 10
14 business days the amount accepted by claimant; or
15 2. The claimant rejects the proposal of the dealer.
16 (6) If the notice of claim includes damages that arise
17 from the claimant not having access to a motor vehicle due to
18 the conduct of the dealer, the time set forth in subsections
19 (4) and (5) for the dealer to respond are reduced from 30 days
20 to 10 business days.
21 (7) For the purpose of this section, payment by a
22 dealer is deemed paid on the date a draft or other valid
23 instrument that is equivalent to payment is placed in the
24 United States mail in a properly addressed, postpaid envelope,
25 or, if not so posted, on the date of delivery.
26 (8) The claimant is not entitled to a surcharge in any
27 proceeding initiated against a dealer under this part if the
28 claimant rejects or ignores the dealer's proposal described in
29 subsection (5).
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1 (9) A dealer is not required to pay the attorney's
2 fees of the claimant in any civil action brought under this
3 part if:
4 (a) The dealer, within 30 days after receiving the
5 claimant's notice of claim, notifies the claimant in writing,
6 and a court or arbitrator agrees, that the amount claimed is
7 not supported by the facts of the transaction or event
8 described in the notice of claim or by generally accepted
9 accounting principles, or includes items not properly
10 recoverable under this part, but, nevertheless, offers to pay
11 to the claimant the actual damages that are supported by the
12 facts of the transaction or event described in the notice of
13 claim and properly recoverable under this part, and the
14 surcharge and attorney's fees, if any, described in subsection
15 (4);
16 (b) The claimant's basis for rejecting or ignoring the
17 dealer's proposal described in subsection (5) is not supported
18 by the facts described in the notice of claim, generally
19 accepted accounting principles, or the law; or
20 (c) The claimant fails to substantially comply with
21 this section.
22 (10) This section applies to class action claims
23 subject to the following conditions:
24 (a) In addition to describing the claimant's
25 individual claim as required by subsection (2), the class
26 action notice of claim to the dealer must also include:
27 1. The definition of the class of claimants for whom
28 relief is being sought;
29 2. A description of the alleged violations of this
30 part which have allegedly damaged the class; and
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1 3. A statement describing and providing the amount of
2 each item of actual damages demanded by the claimant on behalf
3 of the class under this part or, if the claimant cannot in
4 good faith quantify an item of actual damages, the claimant
5 providing a comprehensive description of the item of damages
6 and a formula or basis by which the dealer may calculate the
7 damages.
8 (b) The surcharge set forth in subsection (4) does not
9 apply.
10 (c) All time periods described in this section shall
11 be 45 days in length for class actions unless further extended
12 by a written agreement of the parties.
13 (d) If the dealer agrees to pay the damages demanded
14 in the class action notice of claim, the dealer must notify
15 the claimant in writing within 90 days after receiving the
16 class action notice of claim. Within 90 days after receiving
17 the dealer's notice of agreement, the claimant, on behalf of
18 the class, must file a civil action to enforce the agreement,
19 the purposes of which are to conduct proceedings to determine
20 the fairness of the agreement to the class, to administer the
21 agreed resolution of the class action, to provide for
22 notification and opt-out procedures applicable in a class
23 action to ensure compliance with the rules of civil procedure,
24 and to award reasonable attorney's fees to the claimant's
25 counsel for actual time spent in connection with the
26 proceeding. If the claimant fails to file the civil action
27 within 90 days or if the court determines that the agreement
28 is not fair to the class, the class action notice and the
29 dealer's response are void.
30 (e) A dealer is not required to pay attorney's fees
31 for the claimant in a class action proceeding if the dealer,
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1 within 45 days after receiving the class action notification,
2 informs the claimant in writing, and a court or arbitrator in
3 a subsequent action agrees, that:
4 1. The claimant is seeking to recover damages for the
5 class which are not properly recoverable under this part or is
6 seeking to recover damages that are not supported by the facts
7 of the transaction or event described in the class action
8 notice of claim or by generally accepted accounting
9 principles, but still offers to pay the class all damages
10 properly recoverable and listed in the notice of claim; or
11 2. The claim is not a valid class claim or the class
12 is not properly certified as a class, but the dealer offers to
13 pay all actual damages properly recoverable by the claimant
14 under this part as an individual which are supported by the
15 facts of the transaction or event described in the class
16 action notice of claim, in addition to the payments described
17 in subsection (4).
18 (11) Payment of the actual damages or an offer to pay
19 actual damages as set forth in this section:
20 (a) Does not constitute an admission of any wrongdoing
21 by the dealer;
22 (b) Is protected by s. 90.408;
23 (c) Serves to release the dealer from any suit,
24 action, or other action that could be brought under this part
25 arising out of or in connection with the transaction, event,
26 or occurrence described in the notice of claim;
27 (d) Serves as a defense in any action brought by the
28 same claimant to the extent of the damages, inclusive of any
29 surcharge, paid by the dealer; and
30 (e) Serves as a defense in any subsequent action
31 brought by any member of the class who did not opt out in
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1 connection with the same set of operative facts as described
2 in the class action notice of claim or, if the action was
3 settled on a class-wide basis, to the extent of the damages
4 paid by the dealer or otherwise established by the court.
5 (12) The applicable statute of limitations for an
6 action under this part is tolled for 30 days for individual
7 claims and 45 days for class action claims, or such other
8 period of time as agreed to by the parties in writing, by the
9 mailing of the notice required by this section.
10 (13) This section does not apply to an enforcing
11 authority. The Department of Legal Affairs shall prepare a
12 sample demand letter to incorporate the information required
13 by subsection (2) for individual notice of claims and make it
14 available to the public.
15 (14) If a claimant initiates civil litigation under
16 this part without first complying with the requirements of
17 this section, the court, upon a motion of a dealer, shall
18 abate the litigation, without prejudice, until the claimant
19 has complied with the provisions of this part.
20 Section 9. Subsection (8) is added to section 501.212,
21 Florida Statutes, to read:
22 501.212 Application.--This part does not apply to:
23 (8) A claim brought by a person other than the
24 enforcing authority against a dealer as defined in s.
25 501.975(2).
26
27 However, this subsection does not affect any action or remedy
28 concerning residential tenancies covered under part II of
29 chapter 83, nor does it prohibit the enforcing authority from
30 maintaining exclusive jurisdiction to bring any cause of
31 action authorized under this part.
19
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2006 SB 2496
27-1278A-06
1 Section 10. This act shall take effect upon becoming a
2 law.
3
4 *****************************************
5 SENATE SUMMARY
6 Declares that unfair methods of competition,
unconscionable acts or practices, and unfair or deceptive
7 acts or practices by motor vehicle dealers are unlawful.
Provides that a motor vehicle dealer who willfully uses a
8 method or practice that victimizes or attempts to
victimize senior citizens or handicapped persons commits
9 an unfair or deceptive trade practice. Provides a civil
penalty and provides for reimbursement or restitution.
10 Provides that the remedies of part VI of ch. 501, F.S.,
are in addition to remedies otherwise available for the
11 same conduct under state or local law and do not preempt
local consumer-protection ordinances not in conflict with
12 part VI. Provides that, as a condition precedent to
initiating civil litigation arising under part VI of ch.
13 501, F.S., a claimant must give the motor vehicle dealer
written notice of the claimant's intent to initiate
14 litigation against the motor vehicle dealer not less than
30 days before initiating the litigation. Provides for
15 the content of the notice of claim and the method by
which the notice of claim is given to the motor vehicle
16 dealer. Provides that if the claim is paid by the motor
vehicle dealer within 30 days after receiving the notice
17 of claim, together with a surcharge of 10 percent of the
alleged actual damages, the claimant may not initiate
18 litigation against the motor vehicle dealer and the motor
vehicle dealer is obligated to pay only $500 for the
19 attorney's fees of the claimant. Provides that the
surcharge not exceed $500. Provides expedited procedures
20 when the claimant is without access to a motor vehicle.
Provides that a claimant is not entitled to a surcharge
21 under certain circumstances. Provides that
presuit-notification procedures apply to class actions.
22 Provides that the act does not affect the statutory
responsibilities of the Attorney General or the office of
23 the state attorney. Requires a court to abate litigation,
without prejudice, until the claimant has complied with
24 the required procedures.
25
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27
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29
30
31
20
CODING: Words stricken are deletions; words underlined are additions.