Senate Bill sb2488

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    Florida Senate - 2007                                  SB 2488

    By Senator Haridopolos





    26-1528A-07                                             See HB

  1                      A bill to be entitled

  2         An act relating to recreational vehicle dealers

  3         and manufacturers; creating s. 320.3201, F.S.;

  4         providing legislative intent; creating s.

  5         320.3202, F.S.; providing definitions; creating

  6         s. 320.3203, F.S.; providing requirements for a

  7         manufacturer/dealer agreement; requiring

  8         designation of the area of sales

  9         responsibility; providing conditions for sales

10         outside the dealer's area of sales

11         responsibility; creating s. 320.3204, F.S.;

12         providing requirements for sale by

13         manufacturers and distributors; creating s.

14         320.3205, F.S.; providing requirements and

15         procedures for termination, cancellation, or

16         nonrenewal of an agreement by a manufacturer or

17         a dealer; providing for the repurchase by the

18         manufacturer of vehicles, accessories, and

19         parts and equipment, tools, signage, and

20         machinery; creating s. 320.3206, F.S.;

21         providing for change in ownership by a dealer;

22         requiring notice to the manufacturer; providing

23         requirements for rejection by the manufacturer;

24         providing for a dealer to name a family member

25         as a successor in case of retirement,

26         incapacitation, or death of the dealer;

27         providing requirements for rejection of the

28         successor by the manufacturer; creating s.

29         320.3207, F.S.; providing requirements for

30         warrantors, manufacturers, and dealers with

31         respect to warranties; providing

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    Florida Senate - 2007                                  SB 2488
    26-1528A-07                                             See HB




 1         responsibilities; providing requirements for

 2         compensation of the dealer; authorizing

 3         warranty audits by the warrantor; requiring

 4         cause for denial of compensation; providing for

 5         disposition of warranty claims; prohibiting

 6         certain acts by the warrantor and the dealer;

 7         requiring notice of certain pending suits;

 8         creating s. 320.3208, F.S.; providing for

 9         inspection and rejection of a recreational

10         vehicle upon delivery to a dealer; creating s.

11         320.3209, F.S.; prohibiting a manufacturer or

12         distributor from coercing a dealer to perform

13         certain acts; creating s. 320.3210, F.S.;

14         providing for resolution when a dealer,

15         manufacturer, distributor, or warrantor is

16         injured by another party's violation;

17         authorizing civil action; providing for

18         mediation; providing for remedies; creating s.

19         320.3211, F.S.; providing administrative and

20         criminal penalties for violations; providing

21         for an administrative hearing to contest a

22         penalty imposed by the department; providing

23         for severability; providing an effective date.

24  

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

26  

27         Section 1.  Section 320.3201, Florida Statutes, is

28  created to read:

29         320.3201  Legislative intent.--It is the intent of the

30  Legislature to protect the public health, safety, and welfare

31  of the citizens of the state by regulating the relationship

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    Florida Senate - 2007                                  SB 2488
    26-1528A-07                                             See HB




 1  between recreational vehicle dealers and manufacturers,

 2  maintaining competition, and providing consumer protection and

 3  fair trade.

 4         Section 2.  Section 320.3202, Florida Statutes, is

 5  created to read:

 6         320.3202  Definitions.--As used in ss.

 7  320.3201-320.3211, the term:

 8         (1)  "Area of sales responsibility" means the

 9  geographical area agreed to by the dealer and the manufacturer

10  in the manufacturer/dealer agreement in which the dealer has

11  the exclusive right to display or sell the manufacturer's new

12  recreational vehicles of a particular line-make.

13         (2)  "Dealer" means any person, firm, corporation, or

14  business entity licensed or required to be licensed pursuant

15  to s. 320.771.

16         (3)  "Distributor" means any person, firm, corporation,

17  or business entity that purchases new recreational vehicles

18  for resale to dealers.

19         (4)  "Factory campaign" means an effort on the part of

20  a warrantor to contact recreational vehicle owners or dealers

21  in order to address a part or equipment issue.

22         (5)  "Family member" means a spouse or a child,

23  grandchild, parent, sibling, niece, or nephew or the spouse

24  thereof.

25         (6)  "Line-make" means a specific series of

26  recreational vehicle products that:

27         (a)  Are identified by a common series trade name or

28  trademark;

29         (b)  Are targeted to a particular market segment, as

30  determined by their decor, features, equipment, size, weight,

31  and price range;

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    Florida Senate - 2007                                  SB 2488
    26-1528A-07                                             See HB




 1         (c)  Have lengths and interior floor plans that

 2  distinguish the recreational vehicles from recreational

 3  vehicles with substantially the same decor, equipment,

 4  features, price, and weight; and

 5         (d)  Belong to a single, distinct classification of

 6  recreational vehicle product type having a substantial degree

 7  of commonality in the construction of the chassis, frame, and

 8  body.

 9         (7)  "Manufacturer" means any person, firm,

10  corporation, or business entity that engages in the

11  manufacturing of recreational vehicles.

12         (8)  "Manufacturer/dealer agreement" means a written

13  agreement or contract entered into between a manufacturer and

14  a dealer which fixes the rights and responsibilities of the

15  parties and pursuant to which the dealer sells new

16  recreational vehicles.

17         (9)  "Proprietary part" means any part manufactured by

18  or for and sold exclusively by the manufacturer.

19         (10)  "Recreational vehicle" means the types of motor

20  vehicle or motor vehicles defined by s. 320.01(1)(b).

21         (11)  "Transient customer" means a customer who is

22  temporarily traveling through a dealer's area of sales

23  responsibility.

24         (12)  "Warrantor" means any person, firm, corporation,

25  or business entity that gives a warranty in connection with a

26  new recreational vehicle or parts, accessories, or components

27  thereof. Such term does not include service contracts,

28  mechanical or other insurance, or extended warranties sold for

29  separate consideration by a dealer or other person not

30  controlled by a manufacturer.

31  

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    Florida Senate - 2007                                  SB 2488
    26-1528A-07                                             See HB




 1         Section 3.  Section 320.3203, Florida Statutes, is

 2  created to read:

 3         320.3203  Requirement for a written manufacturer/dealer

 4  agreement; area of sales responsibility.--

 5         (1)  A manufacturer or distributor may not sell a

 6  recreational vehicle in the state to or through a dealer

 7  without having entered into a manufacturer/dealer agreement

 8  which is signed by both parties.

 9         (2)  The manufacturer shall designate in the

10  manufacturer/dealer agreement the area of sales responsibility

11  exclusively assigned to a dealer and shall not change such

12  area or establish another dealer for the same line-make in

13  such area during the duration of the agreement.

14         (3)  The area of sales responsibility may not be

15  subject to review or change before 1 year after the execution

16  of the manufacturer/dealer agreement.

17         (4)  A motor vehicle dealer may not sell a new

18  recreational vehicle in this state without having entered into

19  a manufacturer/dealer agreement and may not sell outside of

20  its designated area of sales responsibility.

21         (5)(a)  Notwithstanding subsection (4), a dealer may

22  sell outside of its designated area of responsibility if the

23  dealer obtains a supplemental license pursuant to s.

24  320.771(7) and meets one of the following conditions:

25         1.  For sales within another dealer's designated area

26  of sales responsibility, the dealer must obtain in advance of

27  the off-premise sale a written agreement signed by the dealer,

28  the manufacturer of the recreational vehicles to be sold at

29  the off-premise sale, and the dealer in whose designated area

30  of sales responsibility the off-premise sale will occur. The

31  written agreement must:

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    Florida Senate - 2007                                  SB 2488
    26-1528A-07                                             See HB




 1         a.  Designate the recreational vehicles to be sold;

 2         b.  Set forth the time period for the off-premise sale;

 3  and

 4         c.  Affirmatively authorize the sale of the

 5  recreational vehicles.

 6         2.  The off-premise sale is not located within any

 7  dealer's designated area of sales responsibility and is in

 8  conjunction with a public vehicle show.

 9         3.  The off-premise sale is in conjunction with a

10  public vehicle show in which more than 35 dealers are

11  participating and is predominantly funded by manufacturers.

12         (b)  For the purposes of this subsection, "public

13  vehicle show" means an event sponsored by an organization

14  approved under section 501(c)(6) of the Internal Revenue Code

15  which has the purpose of promoting the welfare of the

16  recreational vehicle industry and is located at a site:

17         1.  That will be used to display and sell recreational

18  vehicles;

19         2.  That is not used for off-premise sales for more

20  than 10 days in a calendar year; and

21         3.  That is not the location set forth on any dealer's

22  license as its place of business.

23         Section 4.  Section 320.3204, Florida Statutes, is

24  created to read:

25         320.3204  Sales of recreational vehicles by

26  manufacturer or distributor.--Sales of recreational vehicles

27  by manufacturers or distributors shall be in accordance with

28  published prices, charges, and terms of sale in effect at any

29  given time. The manufacturer must sell products on the same

30  basis, with respect to all rebates, discounts, and programs,

31  to all competing dealers similarly situated.

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    Florida Senate - 2007                                  SB 2488
    26-1528A-07                                             See HB




 1         Section 5.  Section 320.3205, Florida Statutes, is

 2  created to read:

 3         320.3205  Termination, cancellation, and nonrenewal of

 4  a manufacturer/dealer agreement.--

 5         (1)(a)  A manufacturer, directly or through any

 6  officer, agent, or employee, may not terminate, cancel, or

 7  fail to renew a manufacturer/dealer agreement without good

 8  cause, and, upon renewal, may not require additional inventory

 9  stocking requirements or increased retail sales targets in

10  excess of the market growth in the dealer's area of

11  responsibility.

12         (b)  The manufacturer has the burden of showing good

13  cause. For purposes of determining whether there is good cause

14  for a proposed action by a manufacturer, all of the following

15  factors must be considered:

16         1.  The extent of the affected dealer's penetration in

17  the relevant market area.

18         2.  The nature and extent of the dealer's investment in

19  its business.

20         3.  The adequacy of the dealer's service facilities,

21  equipment, parts, supplies, and personnel.

22         4.  The effect of the proposed action on the community.

23         5.  The extent and quality of the dealer's service

24  under recreational vehicle warranties.

25         6.  The failure to follow agreed-upon procedures or

26  standards related to the overall operation of the dealership.

27         7.  The dealer's performance under the terms of its

28  manufacturer/dealer agreement.

29         (c)  Except as provided in this section, a manufacturer

30  shall provide a dealer at least 120 days' prior written notice

31  

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    Florida Senate - 2007                                  SB 2488
    26-1528A-07                                             See HB




 1  of termination, cancellation, or nonrenewal of the

 2  manufacturer/dealer agreement.

 3         1.  The notice shall state all reasons for termination,

 4  cancellation, or nonrenewal and shall further state that if,

 5  within 30 days following receipt of the manufacturer's notice,

 6  the dealer provides to the manufacturer a written notice of

 7  intent to cure all claimed deficiencies, the dealer will then

 8  have 120 days after the date of the manufacturer's notice to

 9  rectify the deficiencies. If the deficiencies are rectified

10  within 120 days, the manufacturer's notice shall be void. If

11  the dealer fails to provide the notice of intent to cure

12  deficiencies in the prescribed time period, the termination,

13  cancellation, or nonrenewal shall take effect 30 days after

14  the dealer's receipt of the manufacturer's notice unless the

15  dealer has new and untitled inventory on hand.

16         2.  The notice period may be reduced to 30 days if the

17  grounds for termination, cancellation, or nonrenewal are due

18  to:

19         a.  Conviction of or plea of nolo contendere to a

20  felony of a dealer or one of its owners;

21         b.  The abandonment or closing of the business

22  operations of the dealer for 10 consecutive business days

23  unless the closing is due to an act of God, strike, labor

24  difficulty, or other cause over which the dealer has no

25  control;

26         c.  A significant misrepresentation by the dealer; or

27         d.  A suspension or revocation of the dealer's license,

28  or refusal to renew the dealer's license, by the department.

29         3.  The notice provisions of this paragraph shall not

30  apply if the reason for termination, cancellation, or

31  

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    Florida Senate - 2007                                  SB 2488
    26-1528A-07                                             See HB




 1  nonrenewal is insolvency, the occurrence of an assignment for

 2  the benefit of creditors, or bankruptcy.

 3         (2)  A dealer may terminate its manufacturer/dealer

 4  agreement with or without cause at any time by giving 30 days'

 5  written notice to the manufacturer. The dealer has the burden

 6  of showing good cause. Any of the following items shall be

 7  deemed good cause for a proposed action by a dealer:

 8         (a)  Conviction of or plea of nolo contendere to a

 9  felony of a manufacturer or one of its subsidiary companies.

10         (b)  The business operations of the manufacturer have

11  been abandoned or closed for 10 consecutive business days,

12  unless the closing is due to an act of God, strike, labor

13  difficulty, or other cause over which the manufacturer has no

14  control.

15         (c)  A significant misrepresentation by the

16  manufacturer.

17         (d)  A violation of ss. 320.3201-320.3211.

18         (e)  A declaration by the manufacturer of bankruptcy,

19  insolvency, or the occurrence of an assignment for the benefit

20  of creditors or bankruptcy.

21         (3)  If the manufacturer/dealer agreement is

22  terminated, canceled, or not renewed by the manufacturer or by

23  the dealer for cause, the manufacturer shall, at the election

24  of the dealer and within 30 days of termination, cancellation,

25  or nonrenewal, repurchase:

26         (a)  All new motor vehicles, as defined by s.

27  319.001(8), acquired from the manufacturer which have not been

28  used except for demonstration purposes, altered, or damaged at

29  100 percent of the net invoice cost, including transportation,

30  less applicable rebates and discounts to the dealer. In the

31  event any of the vehicles repurchased are damaged, the amount

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    Florida Senate - 2007                                  SB 2488
    26-1528A-07                                             See HB




 1  due to the dealer shall be reduced by the cost to repair the

 2  vehicle. Damage prior to delivery to the dealer will not

 3  disqualify repurchase under this subsection;

 4         (b)  All current and undamaged manufacturer's

 5  accessories and proprietary parts sold to the dealer for

 6  resale, if accompanied by the original invoice, at 105 percent

 7  of the original net price paid to the manufacturer to

 8  compensate the dealer for handling, packing, and shipping the

 9  parts; and

10         (c)  Any functioning diagnostic equipment, special

11  tools, current signage, and other equipment and machinery at

12  100 percent of the dealer's net cost plus freight,

13  destination, delivery, and distribution charges and sales

14  taxes, if any, provided it was purchased by the dealer within

15  5 years before termination and upon the manufacturer's request

16  and can no longer be used in the normal course of the dealer's

17  ongoing business. The manufacturer shall pay the dealer within

18  30 days after receipt of the returned items.

19         Section 6.  Section 320.3206, Florida Statutes, is

20  created to read:

21         320.3206  Transfer of ownership; family succession.--

22         (1)  If a dealer desires to make a change in its

23  ownership by the sale of the business assets, stock transfer,

24  or otherwise, the dealer must give the manufacturer 30 days'

25  written notice before the closing, including all supporting

26  documentation as may be reasonably required by the

27  manufacturer. The manufacturer shall not refuse consent to the

28  proposed change or sale and may not disapprove or withhold

29  approval of the change or sale unless the manufacturer can

30  show that its decision is based on the manufacturer's

31  reasonable criteria, which may include the prospective

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    Florida Senate - 2007                                  SB 2488
    26-1528A-07                                             See HB




 1  transferee's business experience, moral character, financial

 2  qualifications, and any criminal record.

 3         (2)  If the manufacturer rejects a proposed change or

 4  sale, the manufacturer shall give written notice of its

 5  reasons to the dealer within 30 days after receipt of the

 6  dealer's notification and complete documentation. If the

 7  manufacturer does not give notice of rejection, the change or

 8  sale shall be deemed approved.

 9         (3)  The manufacturer has the burden of showing that

10  its rejection of the transfer or sale is reasonable.

11         (4)  It is unlawful for any manufacturer to fail to

12  provide a dealer an opportunity to designate, in writing, a

13  family member as a successor to the dealership in the event of

14  the death, incapacity, or retirement of the dealer. It shall

15  be unlawful to prevent or refuse to honor the succession to a

16  dealership by a family member of the deceased, incapacitated,

17  or retired dealer unless the manufacturer has provided to the

18  dealer written notice of its objections. Grounds for objection

19  shall be lack of creditworthiness, conviction of a felony,

20  lack of required licenses or business experience, or other

21  condition that makes the succession unreasonable under the

22  circumstances. The manufacturer has the burden of showing the

23  unreasonableness of the succession. However, no family member

24  may succeed to a dealership if the succession involves,

25  without the manufacturer's consent, a relocation of the

26  business or an alteration of the terms and conditions of the

27  manufacturer/dealer agreement.

28         Section 7.  Section 320.3207, Florida Statutes, is

29  created to read:

30         320.3207  Warranty obligations.--

31  

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    Florida Senate - 2007                                  SB 2488
    26-1528A-07                                             See HB




 1         (1)  Each warrantor shall specify in writing to each of

 2  its dealers obligations, if any, for preparation, delivery,

 3  and warranty service on its products; compensate the dealer

 4  for warranty service required of the dealer by the warrantor;

 5  and provide the dealer the schedule of compensation to be paid

 6  and the time allowances for the performance of such work and

 7  service. In no event shall the schedule of compensation fail

 8  to include reasonable compensation for diagnostic work as well

 9  as warranty labor.

10         (2)  Time allowances for the diagnosis and performance

11  of warranty labor shall be reasonable for the work to be

12  performed. The manufacturer shall authorize the dealer to

13  undertake warranty repairs without prior approval if the

14  repairs require less than 3 hours of labor. In no event shall

15  the compensation of a dealer for warranty labor be less than

16  the lowest retail labor rates actually charged by the dealer

17  for like nonwarranty labor as long as such rates are

18  reasonable.

19         (3)  The warrantor shall reimburse the dealer for

20  warranty parts at actual wholesale cost plus a minimum

21  30-percent handling charge and the cost, if any, of freight to

22  return warranty parts to the warrantor.

23         (4)  Warranty audits of dealer records may be conducted

24  by the warrantor on a reasonable basis, and dealer claims for

25  warranty compensation shall not be denied except for cause,

26  such as performance of nonwarranty repairs, material

27  noncompliance with warrantor's published policies and

28  procedures, lack of material documentation, fraud, or

29  misrepresentation.

30         (5)  The dealer must submit warranty claims within 45

31  days after completing work.

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    Florida Senate - 2007                                  SB 2488
    26-1528A-07                                             See HB




 1         (6)  The dealer must notify the warrantor verbally or

 2  in writing if the dealer is unable to perform material or

 3  repetitive warranty repairs as soon as is reasonably possible.

 4         (7)  The warrantor must disapprove warranty claims in

 5  writing within 30 days after the date of submission by the

 6  dealer in the manner and form prescribed by the warrantor.

 7  Claims not specifically disapproved in writing within 30 days

 8  shall be construed to be approved and must be paid within 45

 9  days.

10         (8)  It is a violation of ss. 320.3201-320.3211 for any

11  warrantor to:

12         (a)  Fail to perform any of its warranty obligations

13  with respect to a recreational vehicle and its components;

14         (b)  Fail to include, in written notices of factory

15  campaigns to recreational vehicle owners and dealers, the

16  expected date by which necessary parts and equipment,

17  including tires and chassis or chassis parts, will be

18  available to dealers to perform the campaign work. The

19  manufacturer may ship parts to the dealer to effect the

20  campaign work, and, if such parts are in excess of the

21  dealer's requirements, the dealer may return unused parts to

22  the manufacturer for credit after completion of the campaign;

23         (c)  Fail to compensate any of its dealers for

24  authorized repairs effected by the dealer of merchandise

25  damaged in manufacture or transit to the dealer, if the

26  carrier is designated by the manufacturer, factory branch,

27  distributor, or distributor branch;

28         (d)  Fail to compensate any of its dealers for

29  authorized warranty service in accordance with the schedule of

30  compensation provided to the dealer pursuant to this section

31  if performed in a timely and competent manner;

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    Florida Senate - 2007                                  SB 2488
    26-1528A-07                                             See HB




 1         (e)  Intentionally misrepresent in any way to

 2  purchasers of recreational vehicles that warranties with

 3  respect to the manufacture, performance, or design of the

 4  vehicle are made by the dealer either as warrantor or

 5  cowarrantor; or

 6         (f)  Require the dealer to make warranties to customers

 7  in any manner related to the manufacture of the recreational

 8  vehicle.

 9         (9)  It is a violation of ss. 320.3201-320.3211 for any

10  dealer to:

11         (a)  Fail to perform predelivery inspection functions,

12  if required, in a competent and timely manner;

13         (b)  Fail to perform warranty service work authorized

14  by the warrantor in a reasonably competent and timely manner

15  on any transient customer's vehicle of the same line-make

16  without good cause; or

17         (c)  Misrepresent the terms of any warranty.

18         (10)(a)  Notwithstanding the terms of any

19  manufacturer/dealer agreement, it is a violation of ss.

20  320.3201-320.3211 for any warrantor to fail to indemnify and

21  hold harmless its dealer against any losses or damages to the

22  extent such losses or damages are caused by the negligence or

23  willful misconduct of the warrantor. The dealer shall not be

24  denied indemnification for failing to discover, disclose, or

25  remedy a defect in the design or manufacturing of the

26  recreational vehicle. The dealer shall provide to the

27  warrantor a copy of any suit in which allegations are made

28  that come within this subsection within 10 days after

29  receiving such suit.

30         (b)  Notwithstanding the terms of any

31  manufacturer/dealer agreement, it is a violation of ss.

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    Florida Senate - 2007                                  SB 2488
    26-1528A-07                                             See HB




 1  320.3201-320.3211 for any dealer to fail to indemnify and hold

 2  harmless its warrantor against any losses or damages to the

 3  extent such losses or damages are caused by the negligence or

 4  willful misconduct of the dealer. The warrantor shall provide

 5  to the dealer a copy of pending suits in which allegations are

 6  made that come within this subsection within 10 days after

 7  receiving such suit.

 8         Section 8.  Section 320.3208, Florida Statutes, is

 9  created to read:

10         320.3208  Inspection and rejection by the dealer.--

11         (1)  Whenever a new recreational vehicle is damaged

12  prior to transit to the dealer or is damaged in transit to the

13  dealer when the carrier or means of transportation has been

14  selected by the manufacturer or distributor, the dealer shall:

15         (a)  Notify the manufacturer or distributor of the

16  damage by the next business day after the date of delivery of

17  the new recreational vehicle to the dealer or within such

18  additional time as specified in the manufacturer/dealer

19  agreement; and

20         (b)  Either:

21         1.  Request from the manufacturer or distributor

22  authorization to replace the components, parts, and

23  accessories damaged or otherwise correct the damage; or

24         2.  Reject the vehicle within the timeframe set forth

25  in subsection (3).

26  

27  If the manufacturer or distributor refuses or fails to

28  authorize repair of such damage within 10 days after receipt

29  of notification or if the dealer rejects the recreational

30  vehicle because of damage, ownership of the new recreational

31  vehicle shall revert to the manufacturer or distributor.

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    Florida Senate - 2007                                  SB 2488
    26-1528A-07                                             See HB




 1         (2)  The dealer will exercise due care in custody of

 2  the damaged recreational vehicle, but the dealer shall have no

 3  other obligations, financial or otherwise, with respect to

 4  that recreational vehicle.

 5         (3)  The timeframe for inspection and rejection by the

 6  dealer shall be part of the manufacturer/dealer agreement and

 7  shall not be less than 3 business days after the physical

 8  delivery of the recreational vehicle.

 9         (4)  Any recreational vehicle that has, at the time of

10  delivery to the dealer, an unreasonable amount of miles on its

11  odometer, as determined by the dealer, may be subject to

12  rejection by the dealer and reversion of the vehicle to the

13  manufacturer or distributor.

14         Section 9.  Section 320.3209, Florida Statutes, is

15  created to read:

16         320.3209  Coercion of dealer prohibited.--

17         (1)  A manufacturer or distributor may not coerce or

18  attempt to coerce a dealer to:

19         (a)  Purchase a product that the dealer did not order;

20         (b)  Enter into an agreement with the manufacturer or

21  distributor;

22         (c)  Take any action which is unfair or unreasonable to

23  the dealer; or

24         (d)  Require a dealer to enter into an agreement that

25  requires the dealer to submit its disputes to binding

26  arbitration or otherwise waive rights or responsibilities

27  under ss. 320.3201-320.3211.

28         (2)  As used in this section, the term "coerce"

29  includes, but is not limited to, threatening to terminate,

30  cancel, or not renew a manufacturer/dealer agreement without

31  good cause or threatening to withhold product lines or delay

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    Florida Senate - 2007                                  SB 2488
    26-1528A-07                                             See HB




 1  product delivery as an inducement to amending the

 2  manufacturer/dealer agreement.

 3         Section 10.  Section 320.3210, Florida Statutes, is

 4  created to read:

 5         320.3210  Civil dispute resolution; mediation;

 6  relief.--

 7         (1)  A dealer, manufacturer, distributor, or warrantor

 8  injured by another party's violation of ss. 320.3201-320.3211

 9  may bring a civil action in circuit court to recover actual

10  damages. The court shall award attorney's fees and costs to

11  the prevailing party in such an action. Venue for any civil

12  action authorized by this section shall exclusively be in the

13  county in which the dealership is located. In an action

14  involving more than one dealer, venue may be in any county in

15  which a dealer that is party to the action is located.

16         (2)(a)  Prior to bringing suit under this section, the

17  party bringing suit for an alleged violation shall serve a

18  written demand for mediation upon the offending party.

19         (b)  The demand for mediation shall be served upon the

20  offending party via certified mail at the address stated

21  within the agreement between the parties. In the event of a

22  civil action between two dealers, the demand shall be mailed

23  to the address on the dealer's license filed with the

24  department.

25         (c)  The demand for mediation shall contain a brief

26  statement of the dispute and the relief sought by the party

27  filing the demand.

28         (d)  Within 20 days after the date a demand for

29  mediation is served, the parties shall mutually select an

30  independent certified mediator and meet with that mediator for

31  the purpose of attempting to resolve the dispute. The meeting

                                  17

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    Florida Senate - 2007                                  SB 2488
    26-1528A-07                                             See HB




 1  place shall be in this state in a location selected by the

 2  mediator. The mediator may extend the date of the meeting for

 3  good cause shown by either party or upon stipulation of both

 4  parties.

 5         (e)  The service of a demand for mediation under this

 6  subsection shall stay the time for the filing of any

 7  complaint, petition, protest, or action under ss.

 8  320.3201-320.3211 until representatives of both parties have

 9  met with a mutually selected mediator for the purpose of

10  attempting to resolve the dispute. If a complaint, petition,

11  protest, or action is filed before that meeting, the court

12  shall enter an order suspending the proceeding or action until

13  the meeting has occurred and may, upon written stipulation of

14  all parties to the proceeding or action that they wish to

15  continue to mediate under this subsection, enter an order

16  suspending the proceeding or action for as long a period as

17  the court considers appropriate. A suspension order issued

18  under this paragraph may be revoked upon motion of any party

19  or upon motion of the court.

20         (f)  The parties to the mediation shall bear their own

21  costs for attorney's fees and divide equally the cost of the

22  mediator.

23         (3)  In addition to the remedies provided in this

24  section and notwithstanding the existence of any additional

25  remedy at law, a dealer is authorized to make application to a

26  circuit court for the grant, upon a hearing and for cause

27  shown, of a temporary or permanent injunction, or both,

28  restraining any person from acting as a dealer without being

29  properly licensed pursuant s. 320.771, from violating or

30  continuing to violate any of the provisions of ss.

31  320.3201-320.3211, or from failing or refusing to comply with

                                  18

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    Florida Senate - 2007                                  SB 2488
    26-1528A-07                                             See HB




 1  the requirements of ss. 320.3201-320.3211. Such injunction

 2  shall be issued without bond. A single act in violation of the

 3  provisions of ss. 320.3201-320.3211 shall be sufficient to

 4  authorize the issuance of an injunction.

 5         Section 11.  Section 320.3211, Florida Statutes, is

 6  created to read:

 7         320.3211  Penalties.--

 8         (1)  The department shall, as it deems necessary,

 9  either suspend or revoke any license issued under s. 320.771

10  upon a finding that the dealer violated any provision of ss.

11  320.3201-320.3211. The department is authorized to assess,

12  impose, levy, and collect by legal process fines, in an amount

13  not to exceed $1,000 for each violation, against any

14  individual if it finds that he or she has violated any

15  provision of ss. 320.3201-320.3211. Such individual is

16  entitled to an administrative hearing pursuant to chapter 120

17  to contest the action or fine levied, or about to be levied,

18  upon him or her.

19         (2)  In addition to the civil and administrative

20  remedies, a person who violates any provision of ss.

21  320.3201-320.3211 commits a misdemeanor of the second degree,

22  punishable as provided in s. 775.082 or s. 775.083.

23         Section 12.  If any provision of this act or the

24  application thereof to any person or circumstance is held

25  invalid, the invalidity shall not affect other provisions or

26  applications of the act which can be given effect without the

27  invalid provision or application and, to this end, the

28  provisions of this act are declared severable.

29         Section 13.  This act shall take effect July 1, 2007.

30  

31  

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