HB 815

1
A bill to be entitled
2An act relating to motor vehicle dealers; amending s.
3320.64, F.S.; revising provisions for grounds for denial,
4suspension, or revocation of license of a motor vehicle
5manufacturer, factory branch, distributor, or importer
6licensed by the Department of Highway Safety and Motor
7Vehicles to enter into franchise agreements with dealers;
8prohibiting certain charge-backs of warranty service
9payments made to a dealer unless certain procedures are
10followed; revising such procedures; prohibiting applicant
11or licensee from refusing to allow, limiting, or
12restricting a motor vehicle dealer acquisition or addition
13of operations for another line-make of motor vehicles
14without a showing that the acquisition or addition would
15impair the dealer's ability to adequately sell or service
16such applicant's or licensee's motor vehicles; amending s.
17320.641, F.S.; revising procedures for a determination
18that a discontinuation, cancellation, or nonrenewal of a
19franchise agreement by the applicant or licensee is
20unfair; providing for a 180-day notice to cure an alleged
21breach of the agreement; providing an effective date.
22
23Be It Enacted by the Legislature of the State of Florida:
24
25     Section 1.  Subsection (25) of section 320.64, Florida
26Statutes, is amended, and subsection (37) is added to that
27section, to read:
28     320.64  Denial, suspension, or revocation of license;
29grounds.--A license of a licensee under s. 320.61 may be denied,
30suspended, or revoked within the entire state or at any specific
31location or locations within the state at which the applicant or
32licensee engages or proposes to engage in business, upon proof
33that the section was violated with sufficient frequency to
34establish a pattern of wrongdoing, and a licensee or applicant
35shall be liable for claims and remedies provided in ss. 320.695
36and 320.697 for any violation of any of the following
37provisions. A licensee is prohibited from committing the
38following acts:
39     (25)  The applicant or licensee has undertaken an audit of
40warranty payments or incentive payment previously paid to a
41motor vehicle dealer in violation of this section or has failed
42to comply with s. 320.696. An applicant or licensee may
43reasonably and periodically audit a motor vehicle dealer to
44determine the validity of paid claims. Audit of warranty
45payments shall only be for the 1-year period immediately
46following the date the claim was paid. Audit of incentive
47payments shall only be for an 18-month period immediately
48following the date the incentive was paid. An applicant or
49licensee shall not deny a claim or charge a motor vehicle dealer
50back subsequent to the payment of the claim unless the applicant
51or licensee can show that the claim was false or fraudulent or
52that the motor vehicle dealer failed to substantially comply
53with the reasonable written and uniformly applied procedures of
54the applicant or licensee for such repairs or incentives. An
55applicant or licensee may not charge a motor vehicle dealer back
56subsequent to the payment of the claim unless a representative
57of the applicant or licensee has met in person at the dealership
58with an officer or employee of the dealer designated by the
59motor vehicle dealer and explained in detail the basis for each
60of the proposed charge-backs and thereafter given the motor
61vehicle dealer's representative a reasonable opportunity at the
62meeting, and no less than 30 days after such meeting, to explain
63the motor vehicle dealer's position relating to each of the
64proposed charge-backs. The applicant or licensee shall be
65prohibited from changing or altering the basis for each of the
66proposed charge-backs as presented to the motor vehicle dealer's
67representative following the conclusion of the audit. In the
68event the motor vehicle dealer was selected for audit or review
69on the basis that some or all of the motor vehicle dealer's
70claims were viewed as excessive in comparison to average, mean,
71or aggregate data accumulated by the applicant or licensee, or
72in relation to claims submitted by a group of other motor
73vehicle dealers, the applicant or licensee shall, at or prior to
74the meeting with the motor vehicle dealer's representative,
75provide the dealer with a written statement containing the basis
76or methodology upon which the motor vehicle dealer was selected
77for audit or review.
78     (37)  Notwithstanding the terms of any franchise agreement,
79the applicant or licensee has refused to allow, limited, or
80restricted a motor vehicle dealer from acquiring or adding a
81sales or service operation for another line-make of motor
82vehicles at the same or expanded facility at which the motor
83vehicle dealer currently operates a dealership unless the
84applicant or licensee can demonstrate that such acquisition or
85addition will substantially impair the dealer's ability to
86adequately sell or service such applicant's or licensee's motor
87vehicles.
88
89A motor vehicle dealer who can demonstrate that a violation of,
90or failure to comply with, any of the preceding provisions by an
91applicant or licensee will or can adversely and pecuniarily
92affect the complaining dealer, shall be entitled to pursue all
93of the remedies, procedures, and rights of recovery available
94under ss. 320.695 and 320.697.
95     Section 2.  Subsection (3) of section 320.641, Florida
96Statutes, is amended to read:
97     320.641  Discontinuations, cancellations, nonrenewals,
98modifications, and replacement of franchise agreements.--
99     (3)  Any motor vehicle dealer who receives a notice of
100intent to discontinue, cancel, not renew, modify, or replace
101may, within the 90-day notice period, file a petition or
102complaint for a determination of whether such action is an
103unfair or prohibited discontinuation, cancellation, nonrenewal,
104modification, or replacement. Agreements and certificates of
105appointment shall continue in effect until final determination
106of the issues raised in such petition or complaint by the motor
107vehicle dealer. A discontinuation, cancellation, or nonrenewal
108of a franchise agreement is unfair if it is not clearly
109permitted by the franchise agreement; is not undertaken in good
110faith; is not undertaken for good cause; or is based on an
111alleged breach of the franchise agreement for which the motor
112vehicle dealer was not given 180 days' notice to cure the
113alleged breach and which is not in fact a material and
114substantial breach; or, if the grounds relied upon for
115termination, cancellation, or nonrenewal have not been applied
116in a uniform and consistent manner by the licensee. A
117modification or replacement is unfair if it is not clearly
118permitted by the franchise agreement; is not undertaken in good
119faith; or is not undertaken for good cause. The applicant or
120licensee shall have the burden of proof that such action is fair
121and not prohibited.
122     Section 3.  This act shall take effect July 1, 2007.


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