Florida Senate - 2007 COMMITTEE AMENDMENT
Bill No. SB 1722
Barcode 453234
CHAMBER ACTION
Senate House
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03/22/2007 07:15 AM .
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11 The Committee on Transportation (Baker) recommended the
12 following amendment:
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14 Senate Amendment (with title amendment)
15 Delete everything after the enacting clause
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17 and insert:
18 Section 1. Subsection (25) of section 320.64, Florida
19 Statutes, is amended, and subsection (37) is added to that
20 section, to read:
21 320.64 Denial, suspension, or revocation of license;
22 grounds.--A license of a licensee under s. 320.61 may be
23 denied, suspended, or revoked within the entire state or at
24 any specific location or locations within the state at which
25 the applicant or licensee engages or proposes to engage in
26 business, upon proof that the section was violated with
27 sufficient frequency to establish a pattern of wrongdoing, and
28 a licensee or applicant shall be liable for claims and
29 remedies provided in ss. 320.695 and 320.697 for any violation
30 of any of the following provisions. A licensee is prohibited
31 from committing the following acts:
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Florida Senate - 2007 COMMITTEE AMENDMENT
Bill No. SB 1722
Barcode 453234
1 (25) The applicant or licensee has undertaken an audit
2 of warranty payments or incentive payment previously paid to a
3 motor vehicle dealer in violation of this section or has
4 failed to comply with s. 320.696. An applicant or licensee may
5 reasonably and periodically audit a motor vehicle dealer to
6 determine the validity of paid claims. Audit of warranty
7 payments shall only be for the 1-year period immediately
8 following the date the claim was paid. Audit of incentive
9 payments shall only be for an 18-month period immediately
10 following the date the incentive was paid. An applicant or
11 licensee shall not deny a claim or charge a motor vehicle
12 dealer back subsequent to the payment of the claim unless the
13 applicant or licensee can show that the claim was false or
14 fraudulent or that the motor vehicle dealer failed to
15 substantially comply with the reasonable written and uniformly
16 applied procedures of the applicant or licensee for such
17 repairs or incentives. An applicant or licensee may not charge
18 a motor vehicle dealer back subsequent to the payment of a
19 claim unless a representative of the applicant or licensee has
20 met in person, by telephone, or by video teleconference with
21 an officer or employee of the dealer designated by the motor
22 vehicle dealer. At such meeting the applicant or licensee must
23 have provided a detailed explanation, with supporting
24 documentation, as to the basis for each of the claims for
25 which the applicant or licensee proposed to charge-back the
26 dealer and a written statement containing the basis upon which
27 the motor vehicle dealer was selected for audit or review.
28 Thereafter the applicant or licensee must have provided the
29 motor vehicle dealer's representative a reasonable period
30 after the meeting within which to respond to the proposed
31 charge-backs, said period to be commensurate with the volume
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Florida Senate - 2007 COMMITTEE AMENDMENT
Bill No. SB 1722
Barcode 453234
1 of claims under consideration, but in no case less than 45
2 days after such meeting. The applicant or licensee shall be
3 prohibited from changing or altering the basis for each of the
4 proposed charge-backs as presented to the motor vehicle
5 dealer's representative following the conclusion of the audit,
6 unless the applicant or licensee received new information
7 affecting the basis for one or more charge-backs. If the
8 applicant or licensee has claimed the existence of new
9 information, the dealer must have been given the same right to
10 a meeting and right to respond as when the charge-back was
11 originally presented.
12 (37) Notwithstanding the terms of any franchise
13 agreement, the applicant or licensee has refused to allow,
14 limited, or restricted a motor vehicle dealer from acquiring
15 or adding a sales or service operation for another line-make
16 of motor vehicles at the same or expanded facility at which
17 the motor vehicle dealer currently operates a dealership
18 unless the applicant or licensee can demonstrate that such
19 refusal, limitation, or restriction is justified by
20 consideration of reasonable facility and financial
21 requirements and the dealer's performance for the existing
22 line-make.
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24 A motor vehicle dealer who can demonstrate that a violation
25 of, or failure to comply with, any of the preceding provisions
26 by an applicant or licensee will or can adversely and
27 pecuniarily affect the complaining dealer, shall be entitled
28 to pursue all of the remedies, procedures, and rights of
29 recovery available under ss. 320.695 and 320.697.
30 Section 2. Subsection (3) of section 320.641, Florida
31 Statutes, is amended to read:
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Florida Senate - 2007 COMMITTEE AMENDMENT
Bill No. SB 1722
Barcode 453234
1 320.641 Discontinuations, cancellations, nonrenewals,
2 modifications, and replacement of franchise agreements.--
3 (3) Any motor vehicle dealer who receives a notice of
4 intent to discontinue, cancel, not renew, modify, or replace
5 may, within the 90-day notice period, file a petition or
6 complaint for a determination of whether such action is an
7 unfair or prohibited discontinuation, cancellation,
8 nonrenewal, modification, or replacement. Agreements and
9 certificates of appointment shall continue in effect until
10 final determination of the issues raised in such petition or
11 complaint by the motor vehicle dealer. A discontinuation,
12 cancellation, or nonrenewal of a franchise agreement is unfair
13 if it is not clearly permitted by the franchise agreement; is
14 not undertaken in good faith; is not undertaken for good
15 cause; or is based on an alleged breach of the franchise
16 agreement which is not in fact a material and substantial
17 breach; or, if the grounds relied upon for termination,
18 cancellation, or nonrenewal have not been applied in a uniform
19 and consistent manner by the licensee. If the notice of
20 discontinuation, cancellation or non-renewal relates to an
21 alleged failure of the new motor vehicle dealer's sales or
22 service performance obligations under the franchise agreement,
23 the new motor vehicle dealer must first be provided with at
24 least 180 days to correct the alleged failure before a
25 licensee may send the notice of discontinuation, cancellation
26 or non-renewal. A modification or replacement is unfair if it
27 is not clearly permitted by the franchise agreement; is not
28 undertaken in good faith; or is not undertaken for good cause.
29 The applicant or licensee shall have the burden of proof that
30 such action is fair and not prohibited.
31 Section 3. This act shall take effect July 1, 2007.
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Florida Senate - 2007 COMMITTEE AMENDMENT
Bill No. SB 1722
Barcode 453234
1 ================ T I T L E A M E N D M E N T ===============
2 And the title is amended as follows:
3 Delete everything before the enacting clause
4
5 and insert:
6 A bill to be entitled
7 An act relating to motor vehicle dealers;
8 amending s. 320.64, F.S.; revising provisions
9 for grounds for denial, suspension, or
10 revocation of license of a motor vehicle
11 manufacturer, factory branch, distributor, or
12 importer licensed by the Department of Highway
13 Safety and Motor Vehicles to enter into
14 franchise agreements with dealers; prohibiting
15 certain charge-backs of warranty service
16 payments made to a dealer unless certain
17 procedures are followed; revising such
18 procedures; prohibiting applicant or licensee
19 from refusing to allow, limiting, or
20 restricting a motor vehicle dealer acquisition
21 or addition of operations for another line-make
22 of motor vehicles without a showing that the
23 acquisition or addition would impair the
24 dealer's ability to adequately sell or service
25 such applicant's or licensee's motor vehicles;
26 amending s. 320.641, F.S.; revising procedures
27 for a determination that a discontinuation,
28 cancellation, or nonrenewal of a franchise
29 agreement by the applicant or licensee is
30 unfair; providing for a 180-day notice to cure
31 an alleged breach of the agreement; providing
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Florida Senate - 2007 COMMITTEE AMENDMENT
Bill No. SB 1722
Barcode 453234
1 an effective date.
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