Senate Bill sb2214

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2007                                  SB 2214

    By Senator Dockery





    15-1418-07                                              See HB

  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.; revising language

11         concerning actionable, unfair, or deceptive

12         acts or practices by dealers; correcting a

13         cross-reference; creating s. 501.9765, F.S.;

14         providing definitions; providing that a motor

15         vehicle dealer who willfully uses a method or

16         practice that victimizes or attempts to

17         victimize senior citizens or handicapped

18         persons commits an unfair or deceptive trade

19         practice; providing a civil penalty; providing

20         for reimbursement or restitution; providing for

21         disposition of penalties; creating s. 501.977,

22         F.S.; providing additional remedies against a

23         motor vehicle dealer; creating s. 501.978,

24         F.S.; providing that the remedies of part VI of

25         ch. 501, F.S., are in addition to remedies

26         otherwise available for the same conduct under

27         state or local law and do not preempt local

28         consumer protection ordinances not in conflict

29         with that part; creating s. 501.979, F.S.;

30         providing for attorney's fees for a prevailing

31         party; providing procedures for receiving

                                  1

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2007                                  SB 2214
    15-1418-07                                              See HB




 1         attorney's fees; authorizing the Department of

 2         Legal Affairs or the office of the state

 3         attorney to receive attorney's fees and costs

 4         under certain circumstances; creating s.

 5         501.98, F.S.; requiring that, as a condition

 6         precedent to initiating civil litigation

 7         arising under part VI of ch. 501, F.S., a

 8         claimant give the motor vehicle dealer written

 9         notice of the claimant's intent to initiate

10         litigation within a specified period before

11         initiating the litigation; providing for the

12         content of the notice and the method of

13         delivery of the notice; providing that if the

14         claim is paid by the dealer within a specified

15         period after receiving the notice, with a

16         specified surcharge, the claimant may not

17         initiate litigation against the dealer, and the

18         dealer is obligated to pay only a set amount

19         for the claimant's attorney's fees; providing a

20         cap on the surcharge; providing that a claimant

21         is not entitled to a surcharge under certain

22         circumstances; providing that a dealer is not

23         obligated to pay the claimant's attorney's fees

24         under certain circumstances; providing for the

25         effect of payment of actual damages or an offer

26         to pay actual damages for specified purposes;

27         providing that the statute of limitations is

28         tolled for a certain period upon the mailing of

29         a specified notice; requiring the Department of

30         Legal Affairs to prepare a specified sample

31         demand letter and make it available to the

                                  2

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2007                                  SB 2214
    15-1418-07                                              See HB




 1         public; permitting a court to abate litigation,

 2         without prejudice, until the claimant has

 3         complied with the required procedures and the

 4         dealer has opportunity to respond to demand;

 5         creating s. 501.99, F.S.; providing application

 6         of certain provisions; amending s. 501.212,

 7         F.S.; exempting certain claims against motor

 8         vehicle dealers from the provisions of part II

 9         of ch. 501, F.S.; providing an effective date.

10  

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

12  

13         Section 1.  Section 501.975, Florida Statutes, is

14  amended to read:

15         501.975  Definitions.--As used in this part s. 501.976,

16  the term following terms shall have the following meanings:

17         (1)  "Customer" includes a customer's designated agent.

18         (2)  "Dealer" means a motor vehicle dealer as defined

19  in s. 320.27, but does not include a motor vehicle auction as

20  defined in s. 320.27(1)(c)4.

21         (3)  "Replacement item" means a tire, bumper, bumper

22  fascia, glass, in-dashboard equipment, seat or upholstery

23  cover or trim, exterior illumination unit, grill, sunroof,

24  external mirror and external body cladding. The replacement of

25  up to three of these items does not constitute repair of

26  damage if each item is replaced because of a product defect or

27  damaged due to vandalism while the new motor vehicle is under

28  the control of the dealer and the items are replaced with

29  original manufacturer equipment, unless an item is replaced

30  due to a crash, collision, or accident.

31  

                                  3

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2007                                  SB 2214
    15-1418-07                                              See HB




 1         (4)  "Threshold amount" means 3 percent of the

 2  manufacturer's suggested retail price of a motor vehicle or

 3  $650, whichever is less.

 4         (5)  "Vehicle" means any automobile, truck, bus,

 5  recreational vehicle, or motorcycle required to be licensed

 6  under chapter 320 for operation over the roads of Florida, but

 7  does not include trailers, mobile homes, travel trailers, or

 8  trailer coaches without independent motive power.

 9         Section 2.  Section 501.9755, Florida Statutes, is

10  created to read:

11         501.9755  Unlawful acts and practices.--

12         (1)  Unfair methods of competition, unconscionable acts

13  or practices, and unfair or deceptive acts or practices in the

14  conduct of any trade or commerce by a dealer are unlawful.

15         (2)  It is the intent of the Legislature that, in

16  construing subsection (1), due consideration and great weight

17  be given to the interpretations of the Federal Trade

18  Commission and the federal courts relating to s. 5(a)(1) of

19  the Federal Trade Commission Act, as amended, 15 U.S.C. s.

20  45(a)(1).

21         Section 3.  Section 501.976, Florida Statutes, is

22  amended to read:

23         501.976  Actionable, unfair, or deceptive acts or

24  practices.--In addition to acts and practices actionable under

25  s. 501.9755, it is an unfair or deceptive act or practice,

26  actionable under the Florida Deceptive and Unfair Trade

27  Practices Act, for a dealer to:

28         (1)  Represent directly or indirectly that a motor

29  vehicle is a factory executive vehicle or executive vehicle

30  unless the such vehicle was purchased directly from the

31  manufacturer or a subsidiary of the manufacturer and the

                                  4

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2007                                  SB 2214
    15-1418-07                                              See HB




 1  vehicle was used exclusively by the manufacturer, its

 2  subsidiary, or a dealer for the commercial or personal use of

 3  the manufacturer's, subsidiary's, or dealer's employees.

 4         (2)  Represent directly or indirectly that a vehicle is

 5  a demonstrator unless the vehicle complies with the definition

 6  of a demonstrator in s. 320.60(3).

 7         (3)  Represent the previous usage or status of a

 8  vehicle to be something that it was not, or make usage or

 9  status representations unless the dealer has correct

10  information regarding the history of the vehicle to support

11  the representations.

12         (4)  Represent the quality of care, regularity of

13  servicing, or general condition of a vehicle unless known by

14  the dealer to be true and supportable by material fact.

15         (5)  Represent orally or in writing that a particular

16  vehicle has not sustained structural or substantial skin

17  damage unless the statement is made in good faith and the

18  vehicle has been inspected by the dealer or his or her agent

19  to determine whether the vehicle has incurred such damage.

20         (6)  Sell a vehicle without fully and conspicuously

21  disclosing in writing at or before the consummation of sale

22  any warranty or guarantee terms, obligations, or conditions

23  that the dealer or manufacturer has given to the buyer. If the

24  warranty obligations are to be shared by the dealer and the

25  buyer, the method of determining the percentage of repair

26  costs to be assumed by each party must be disclosed. If the

27  dealer intends to disclaim or limit any expressed or implied

28  warranty, the disclaimer must be in writing in a conspicuous

29  manner and in lay terms in accordance with chapter 672 and the

30  Magnuson-Moss Warranty--Federal Trade Commission Improvement

31  Act.

                                  5

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2007                                  SB 2214
    15-1418-07                                              See HB




 1         (7)  Provide an express or implied warranty and fail to

 2  honor such warranty unless properly disclaimed pursuant to

 3  subsection (6).

 4         (8)  Misrepresent warranty coverage, application

 5  period, or any warranty transfer cost or conditions to a

 6  customer.

 7         (9)  Obtain signatures from a customer on contracts

 8  that are not fully completed at the time the customer signs or

 9  which do not reflect accurately the negotiations and agreement

10  between the customer and the dealer.

11         (10)  Require or accept a deposit from a prospective

12  customer prior to entering into a binding contract for the

13  purchase and sale of a vehicle unless the customer is given a

14  written receipt that states how long the dealer will hold the

15  vehicle from other sale and the amount of the deposit, and

16  clearly and conspicuously states whether and upon what

17  conditions the deposit is refundable or nonrefundable.

18         (11)  Add to the cash price of a vehicle as defined in

19  s. 520.02(2) any fee or charge other than those provided in

20  that section and in rule 69V-50.001 3D-50.001, Florida

21  Administrative Code. All fees or charges permitted to be added

22  to the cash price by rule 69V-50.001 3D-50.001, Florida

23  Administrative Code, must be fully disclosed to customers in

24  all binding contracts concerning the vehicle's selling price.

25         (12)  Alter or change the odometer mileage of a

26  vehicle.

27         (13)  Sell a vehicle without disclosing to the customer

28  the actual year and model of the vehicle.

29         (14)  File a lien against a new vehicle purchased with

30  a check unless the dealer fully discloses to the purchaser

31  that a lien will be filed if purchase is made by check and

                                  6

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2007                                  SB 2214
    15-1418-07                                              See HB




 1  fully discloses to the buyer the procedures and cost to the

 2  buyer for gaining title to the vehicle after the lien is

 3  filed.

 4         (15)  Increase the price of the vehicle after having

 5  accepted an order of purchase or a contract from a buyer,

 6  notwithstanding subsequent receipt of an official price change

 7  notification. The price of a vehicle may be increased after a

 8  dealer accepts an order of purchase or a contract from a buyer

 9  if:

10         (a)  A trade-in vehicle is reappraised because it

11  subsequently is damaged, or parts or accessories are removed;

12         (b)  The price increase is caused by the addition of

13  new equipment, as required by state or federal law;

14         (c)  The price increase is caused by the revaluation of

15  the United States dollar by the Federal Government, in the

16  case of a foreign-made vehicle;

17         (d)  The price increase is caused by state or federal

18  tax rate changes; or

19         (e)  Price protection is not provided by the

20  manufacturer, importer, or distributor.

21         (16)  Advertise the price of a vehicle unless the

22  vehicle is identified by year, make, model, and a commonly

23  accepted trade, brand, or style name. The advertised price

24  must include all fees or charges that the customer must pay,

25  including freight or destination charge, dealer preparation

26  charge, and charges for undercoating or rustproofing. State

27  and local taxes, tags, registration fees, and title fees,

28  unless otherwise required by local law or standard, need not

29  be disclosed in the advertisement. When two or more dealers

30  advertise jointly, with or without participation of the

31  franchisor, the advertised price need not include fees and

                                  7

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2007                                  SB 2214
    15-1418-07                                              See HB




 1  charges that are variable among the individual dealers

 2  cooperating in the advertisement, but the nature of all

 3  charges that are not included in the advertised price must be

 4  disclosed in the advertisement.

 5         (17)  Charge a customer for any predelivery service

 6  required by the manufacturer, distributor, or importer for

 7  which the dealer is reimbursed by the manufacturer,

 8  distributor, or importer.

 9         (18)  Charge a customer for any predelivery service

10  without having printed on all documents that include a line

11  item for predelivery service the following disclosure: "This

12  charge represents costs and profit to the dealer for items

13  such as inspecting, cleaning, and adjusting vehicles, and

14  preparing documents related to the sale."

15         (19)  Fail to disclose damage to a new motor vehicle,

16  as defined in s. 319.001(8), of which the dealer had actual

17  knowledge, if the dealer's actual cost of repairs exceeds the

18  threshold amount, excluding replacement items.

19  

20  In any civil litigation resulting from a violation of this

21  section, when evaluating the reasonableness of an award of

22  attorney's fees to a private person, the trial court shall

23  consider the amount of actual damages in relation to the time

24  spent.

25         Section 4.  Section 501.9765, Florida Statutes, is

26  created to read:

27         501.9765  Violations involving a senior citizen or

28  handicapped person; civil penalties; presumption.--

29         (1)  As used in this section, the term:

30  

31  

                                  8

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2007                                  SB 2214
    15-1418-07                                              See HB




 1         (a)  "Handicapped person" means any person who has a

 2  mental or educational impairment that substantially limits one

 3  or more major life activities.

 4         (b)  "Major life activities" means functions associated

 5  with the normal activities of independent daily living, such

 6  as caring for oneself, performing manual tasks, walking,

 7  seeing, hearing, speaking, breathing, learning, and working.

 8         (c)  "Mental or educational impairment" means:

 9         1.  Any mental or psychological disorder or specific

10  learning disability.

11         2.  Any educational deficiency that substantially

12  affects a person's ability to read and comprehend the terms of

13  any contractual agreement entered into.

14         (d)  "Senior citizen" means a person who is 60 years of

15  age or older.

16         (2)  Any person who willfully uses, or has willfully

17  used, a method, act, or practice in violation of this part,

18  which method, act, or practice victimizes or attempts to

19  victimize a senior citizen or handicapped person, and commits

20  such violation when he or she knew or should have known that

21  his or her conduct was unfair or deceptive is liable for a

22  civil penalty of not more than $15,000 for each such

23  violation.

24         (3)  Any order of restitution or reimbursement based on

25  a violation of this part committed against a senior citizen or

26  handicapped person has priority over the imposition of civil

27  penalties for violations of this section.

28         (4)  Civil penalties collected under this section shall

29  be deposited into the Legal Affairs Revolving Trust Fund of

30  the Department of Legal Affairs and allocated to the

31  Department of Legal Affairs solely for the purpose of

                                  9

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2007                                  SB 2214
    15-1418-07                                              See HB




 1  preparing and distributing consumer education materials,

 2  programs, and seminars to benefit senior citizens and

 3  handicapped persons or to enhance efforts to enforce this

 4  section.

 5         Section 5.  Section 501.977, Florida Statutes, is

 6  created to read:

 7         501.977  Other individual remedies.--

 8         (1)  Without regard to any other remedy or relief to

 9  which a person is entitled, anyone aggrieved by a violation of

10  this part by a dealer may bring an action against the dealer

11  in order to obtain a declaratory judgment that an act or

12  practice violates this part and to enjoin a dealer who has

13  violated, is violating, or is otherwise likely to violate this

14  part.

15         (2)  In any action brought by a person who has suffered

16  a loss as a result of a violation of this part, the person may

17  recover actual damages plus attorney's fees and court costs as

18  provided in s. 501.979. However, damages, fees, or costs are

19  not recoverable under this section against a dealer who has,

20  in good faith, engaged in the dissemination of claims of a

21  manufacturer, distributor, importer, or wholesaler without

22  actual knowledge that doing so violates this part.

23         (3)  In any action brought under this section, if,

24  after the filing of a motion by the dealer, the court finds

25  that the action is frivolous, without legal or factual merit,

26  or brought for the purpose of harassment, the court may, after

27  hearing evidence as to the necessity for a bond, require the

28  party instituting the action to post a bond in the amount that

29  the court finds reasonable to indemnify the defendant for any

30  costs incurred, or to be incurred, including reasonable

31  

                                  10

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2007                                  SB 2214
    15-1418-07                                              See HB




 1  attorney's fees, in defending the claim. This subsection does

 2  not apply to any action initiated by the enforcing authority.

 3         Section 6.  Section 501.978, Florida Statutes, is

 4  created to read:

 5         501.978  Effect on other remedies.--

 6         (1)  The remedies of this part are in addition to

 7  remedies otherwise available for the same conduct under state

 8  or local law.

 9         (2)  This part is supplemental to, and does not

10  preempt, local consumer protection ordinances not inconsistent

11  with this part.

12         Section 7.  Section 501.979, Florida Statutes, is

13  created to read:

14         501.979  Attorney's fees.--

15         (1)  In any civil litigation resulting from an act or

16  practice involving a violation of this part, except as

17  provided in subsection (5) and s. 501.98, the prevailing

18  party, after judgment in the trial court and exhaustion of all

19  appeals, if any, shall receive his or her reasonable

20  attorney's fees and costs from the nonprevailing party. When

21  evaluating the reasonableness of an award of attorney's fees

22  to a private person, the trial court shall consider the actual

23  damages in relation to the time spent.

24         (2)  The attorney for the prevailing party shall submit

25  a sworn affidavit of his or her time spent on the case and his

26  or her costs incurred for all the motions, hearings, and

27  appeals to the trial judge who presided over the civil case.

28         (3)  The trial judge may award the prevailing party the

29  sum of reasonable costs incurred in the action and reasonable

30  attorney's fees for the hours actually spent on the case as

31  sworn to in an affidavit.

                                  11

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2007                                  SB 2214
    15-1418-07                                              See HB




 1         (4)  Any award of attorney's fees or costs becomes a

 2  part of the judgment and is subject to execution as the law

 3  allows.

 4         (5)  In any civil litigation initiated by the enforcing

 5  authority, the court may award to the prevailing party

 6  reasonable attorney's fees and costs if the court finds that

 7  there was a complete absence of a justiciable issue of law or

 8  fact raised by the nonprevailing party or if the court finds

 9  bad faith on the part of the nonprevailing party.

10         (6)  In any administrative proceeding or other

11  nonjudicial action initiated by an enforcing authority, the

12  attorney for the enforcing authority may certify by sworn

13  affidavit the number of hours and the cost thereof to the

14  enforcing authority for the time spent in the investigation

15  and litigation of the case, plus costs reasonably incurred in

16  the action. Payment to the enforcing authority of the sum of

17  the costs may, by stipulation of the parties, be made a part

18  of the final order or decree disposing of the matter. The

19  affidavit shall be attached to and become a part of the order

20  or decree.

21         Section 8.  Section 501.98, Florida Statutes, is

22  created to read:

23         501.98  Demand letter.--

24         (1)  As a condition precedent to initiating any civil

25  litigation arising under this part, a claimant must give the

26  dealer written notice of the claimant's intent to initiate

27  litigation against the dealer not less than 30 days before

28  initiating the litigation.

29         (2)  The notice, which must be completed in good faith,

30  must:

31  

                                  12

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2007                                  SB 2214
    15-1418-07                                              See HB




 1         (a)  State that it is a demand letter under "s. 501.98,

 2  Florida Statutes";

 3         (b)  State the name, address, and telephone number of

 4  the claimant;

 5         (c)  State the name and address of the dealer;

 6         (d)  Provide the date and a description of the

 7  transaction, event, or circumstance that is the basis of the

 8  claim;

 9         (e)  Describe with specificity the underlying facts and

10  how they give rise to an alleged violation of this part;

11         (f)  To the extent applicable, be accompanied by all

12  transaction or other documents upon which the claim is based

13  or upon which the claimant is relying to assert the claim; and

14         (g)  Include a comprehensive and detailed statement

15  describing each item of actual damage demanded by the claimant

16  and recoverable under this part and the amount claimed for

17  each item of damage, including, if applicable, the formula or

18  basis by which each item of damage was calculated.

19         (3)(a)  The notice of the claim must be delivered to

20  the dealer by certified or registered United States mail,

21  return receipt requested. The postal costs shall be reimbursed

22  to the claimant by the dealer if the dealer pays the claim and

23  if the claimant requests reimbursement of the postal costs in

24  the notice of claim.

25         (b)  If the dealer is a corporate entity, the notice of

26  claim must be sent to the registered agent of the dealer as

27  recorded with the Department of State and, in the absence of a

28  registered agent, any person listed in s. 48.081(1).

29         (4)  Notwithstanding any provision of this part to the

30  contrary, a claimant may not initiate litigation against a

31  dealer for a claim arising under this part related to, or in

                                  13

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2007                                  SB 2214
    15-1418-07                                              See HB




 1  connection with, the transaction or event described in the

 2  notice of claim if the dealer pays the claimant within 30 days

 3  after receiving the notice of claim:

 4         (a)  The amount requested in the demand letter as

 5  specified in paragraph (2)(g); and

 6         (b)  A surcharge of 10 percent of the amount requested

 7  in the demand letter, not to exceed $500.

 8         (5)  For the purpose of this section, payment by a

 9  dealer is deemed paid on the date a draft or other valid

10  instrument that is equivalent to payment is placed in the

11  United States mail, or other nationally recognized carrier, in

12  a properly addressed, postpaid envelope, or, if not so posted,

13  on the date of delivery.

14         (6)  The claimant is not entitled to a surcharge in any

15  proceeding initiated against a dealer under this part if the

16  dealer rejects or ignores the notice of claim.

17         (7)  Notwithstanding any provision of this part to the

18  contrary, a dealer is not required to pay the attorney's fees

19  of the claimant in any civil action brought under this part

20  if:

21         (a)  The dealer, within 30 days after receiving the

22  claimant's notice of claim, notifies the claimant in writing,

23  and a court or arbitrator agrees, that the amount claimed is

24  not supported by the facts of the transaction or event

25  described in the notice of claim or by generally accepted

26  accounting principles or includes items not properly

27  recoverable under this part; or

28         (b)  The claimant fails to substantially comply with

29  this section.

30         (8)  Payment of the actual damages or an offer to pay

31  actual damages as set forth in this section:

                                  14

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2007                                  SB 2214
    15-1418-07                                              See HB




 1         (a)  Does not constitute an admission of any wrongdoing

 2  by the dealer;

 3         (b)  Is protected by s. 90.408; and

 4         (c)  Serves to release the dealer from any suit,

 5  action, or other action that could be brought arising out of

 6  or in connection with the transaction, event, or occurrence

 7  described in the notice of claim.

 8         (9)  The applicable statute of limitations for an

 9  action under this part is tolled for 30 days, or such other

10  period of time as agreed to by the parties in writing, by the

11  mailing of the notice required by this section.

12         (10)  This section does not apply to:

13         (a)  Any claim for actual damages brought and certified

14  as a maintainable class action; or

15         (b)  Any action brought by the enforcing authority.

16         (11)  The Department of Legal Affairs shall prepare a

17  form demand letter to incorporate the information required by

18  subsection (2) and make it available to the public.

19         (12)  If a claimant initiates civil litigation under

20  this part without first complying with the requirements of

21  this section, the court, upon a motion by the claimant, may

22  abate the litigation, without prejudice, to permit the

23  claimant to comply with the provisions of this part and allow

24  the dealer the opportunity to accept or reject the demand in

25  accordance with subsection (4).

26         Section 9.  Section 501.99, Florida Statutes, is

27  created to read:

28         501.99  Application.--This part does not apply to:

29         (1)  An act or practice required or specifically

30  permitted by federal or state law.

31  

                                  15

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2007                                  SB 2214
    15-1418-07                                              See HB




 1         (2)  A claim for personal injury or death or a claim

 2  for damage to property other than the property that is the

 3  subject of the consumer transaction.

 4         (3)  Any person or activity regulated under laws

 5  administered by the Office of Insurance Regulation of the

 6  Financial Services Commission.

 7         (4)  Any person or activity regulated under laws

 8  administered by the former Department of Insurance that are

 9  now administered by the Department of Financial Services.

10         Section 10.  Subsection (8) is added to section

11  501.212, Florida Statutes, to read:

12         501.212  Application.--This part does not apply to:

13         (8)  A claim brought by a person other than the

14  enforcing authority against a dealer as defined in s.

15  501.975(2).

16         Section 11.  This act shall take effect upon becoming a

17  law.

18  

19  

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

                                  16

CODING: Words stricken are deletions; words underlined are additions.