Senate Bill sb1722c1

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    Florida Senate - 2007                           CS for SB 1722

    By the Committee on Transportation; and Senator Baker





    596-2121-07

  1                      A bill to be entitled

  2         An act relating to motor vehicle dealers;

  3         amending s. 320.64, F.S.; revising provisions

  4         for grounds for denial, suspension, or

  5         revocation of license of a motor vehicle

  6         manufacturer, factory branch, distributor, or

  7         importer licensed by the Department of Highway

  8         Safety and Motor Vehicles to enter into

  9         franchise agreements with dealers; prohibiting

10         certain charge-backs of warranty service

11         payments made to a dealer unless certain

12         procedures are followed; revising such

13         procedures; prohibiting applicant or licensee

14         from refusing to allow, limiting, or

15         restricting a motor vehicle dealer acquisition

16         or addition of operations for another line-make

17         of motor vehicles without a showing that the

18         acquisition or addition would impair the

19         dealer's ability to adequately sell or service

20         such applicant's or licensee's motor vehicles;

21         amending s. 320.641, F.S.; revising procedures

22         for a determination that a discontinuation,

23         cancellation, or nonrenewal of a franchise

24         agreement by the applicant or licensee is

25         unfair; providing for a 180-day notice to cure

26         an alleged breach of the agreement; providing

27         an effective date.

28  

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

30  

31  

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    Florida Senate - 2007                           CS for SB 1722
    596-2121-07




 1         Section 1.  Subsection (25) of section 320.64, Florida

 2  Statutes, is amended, and subsection (37) is added to that

 3  section, to read:

 4         320.64  Denial, suspension, or revocation of license;

 5  grounds.--A license of a licensee under s. 320.61 may be

 6  denied, suspended, or revoked within the entire state or at

 7  any specific location or locations within the state at which

 8  the applicant or licensee engages or proposes to engage in

 9  business, upon proof that the section was violated with

10  sufficient frequency to establish a pattern of wrongdoing, and

11  a licensee or applicant shall be liable for claims and

12  remedies provided in ss. 320.695 and 320.697 for any violation

13  of any of the following provisions. A licensee is prohibited

14  from committing the following acts:

15         (25)  The applicant or licensee has undertaken an audit

16  of warranty payments or incentive payment previously paid to a

17  motor vehicle dealer in violation of this section or has

18  failed to comply with s. 320.696. An applicant or licensee may

19  reasonably and periodically audit a motor vehicle dealer to

20  determine the validity of paid claims. Audit of warranty

21  payments shall only be for the 1-year period immediately

22  following the date the claim was paid. Audit of incentive

23  payments shall only be for an 18-month period immediately

24  following the date the incentive was paid. An applicant or

25  licensee shall not deny a claim or charge a motor vehicle

26  dealer back subsequent to the payment of the claim unless the

27  applicant or licensee can show that the claim was false or

28  fraudulent or that the motor vehicle dealer failed to

29  substantially comply with the reasonable written and uniformly

30  applied procedures of the applicant or licensee for such

31  repairs or incentives. An applicant or licensee may not charge

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    Florida Senate - 2007                           CS for SB 1722
    596-2121-07




 1  a motor vehicle dealer back subsequent to the payment of a

 2  claim unless a representative of the applicant or licensee has

 3  met in person, by telephone, or by video teleconference with

 4  an officer or employee of the dealer designated by the motor

 5  vehicle dealer. At such meeting the applicant or licensee must

 6  have provided a detailed explanation, with supporting

 7  documentation, as to the basis for each of the claims for

 8  which the applicant or licensee proposed to charge back the

 9  dealer and a written statement containing the basis upon which

10  the motor vehicle dealer was selected for audit or review.

11  Thereafter, the applicant or licensee must have provided the

12  motor vehicle dealer's representative a reasonable period

13  after the meeting within which to respond to the proposed

14  charge-backs, said period to be commensurate with the volume

15  of claims under consideration, but in no case less than 45

16  days after such meeting. The applicant or licensee shall be

17  prohibited from changing or altering the basis for each of the

18  proposed charge-backs as presented to the motor vehicle

19  dealer's representative following the conclusion of the audit,

20  unless the applicant or licensee received new information

21  affecting the basis for one or more charge-backs. If the

22  applicant or licensee has claimed the existence of new

23  information, the dealer must have been given the same right to

24  a meeting and right to respond as when the charge-back was

25  originally presented.

26         (37)  Notwithstanding the terms of any franchise

27  agreement, the applicant or licensee has refused to allow,

28  limited, or restricted a motor vehicle dealer from acquiring

29  or adding a sales or service operation for another line-make

30  of motor vehicles at the same or expanded facility at which

31  the motor vehicle dealer currently operates a dealership

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    Florida Senate - 2007                           CS for SB 1722
    596-2121-07




 1  unless the applicant or licensee can demonstrate that such

 2  refusal, limitation, or restriction is justified by

 3  consideration of reasonable facility and financial

 4  requirements and the dealer's performance for the existing

 5  line-make.

 6  

 7  A motor vehicle dealer who can demonstrate that a violation

 8  of, or failure to comply with, any of the preceding provisions

 9  by an applicant or licensee will or can adversely and

10  pecuniarily affect the complaining dealer, shall be entitled

11  to pursue all of the remedies, procedures, and rights of

12  recovery available under ss. 320.695 and 320.697.

13         Section 2.  Subsection (3) of section 320.641, Florida

14  Statutes, is amended to read:

15         320.641  Discontinuations, cancellations, nonrenewals,

16  modifications, and replacement of franchise agreements.--

17         (3)  Any motor vehicle dealer who receives a notice of

18  intent to discontinue, cancel, not renew, modify, or replace

19  may, within the 90-day notice period, file a petition or

20  complaint for a determination of whether such action is an

21  unfair or prohibited discontinuation, cancellation,

22  nonrenewal, modification, or replacement. Agreements and

23  certificates of appointment shall continue in effect until

24  final determination of the issues raised in such petition or

25  complaint by the motor vehicle dealer. A discontinuation,

26  cancellation, or nonrenewal of a franchise agreement is unfair

27  if it is not clearly permitted by the franchise agreement; is

28  not undertaken in good faith; is not undertaken for good

29  cause; or is based on an alleged breach of the franchise

30  agreement which is not in fact a material and substantial

31  breach; or, if the grounds relied upon for termination,

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    Florida Senate - 2007                           CS for SB 1722
    596-2121-07




 1  cancellation, or nonrenewal have not been applied in a uniform

 2  and consistent manner by the licensee. If the notice of

 3  discontinuation, cancellation, or nonrenewal relates to an

 4  alleged failure of the new motor vehicle dealer's sales or

 5  service performance obligations under the franchise agreement,

 6  the new motor vehicle dealer must first be provided with at

 7  least 180 days to correct the alleged failure before a

 8  licensee may send the notice of discontinuation, cancellation,

 9  or nonrenewal. A modification or replacement is unfair if it

10  is not clearly permitted by the franchise agreement; is not

11  undertaken in good faith; or is not undertaken for good cause.

12  The applicant or licensee shall have the burden of proof that

13  such action is fair and not prohibited.

14         Section 3.  This act shall take effect July 1, 2007.

15  

16          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
17                         Senate Bill 1722

18                                 

19  The committee substitute addresses three issues. First, the CS
    clarifies the manufacturer may also meet with a dealer by
20  telephone or videoconference to discuss proposed charge-backs;
    requires the manufacturer to provide the dealer with
21  documentation for each charge-back and gives the dealer at
    least 45 days to respond; and specifies the dealer must be
22  given the right to a meeting and to respond if the
    manufacturer changes the basis for a charge-back.
23  
    Second, the CS clarifies a manufacturer may not refuse to
24  allow a dealer to add another line make at the dealer's
    existing facility unless the manufacturer can show the refusal
25  is justified by consideration of reasonable facility and
    financial requirements and the dealer's performance for the
26  existing line make.

27  Lastly, the CS requires the manufacturer to provide a 180-day
    cure period before ending a franchise agreement if the alleged
28  failure relates to the dealer's sales or service performance.

29  

30  

31  

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